disaster management division ministry of …...3.8 japan: disaster counter measures basic act 1997...

DISASTER MANAGEMENT DIVISIONMinistry of Home Affairs, Government of India

Third Floor, NDCC-II, Jai Singh Road, New Delhi-110 001

REPORT OF THE TASK FORCE

A Review of the Disaster Management Act, 2005

Ministry of Home AffairsGovernment of India

MARCH 2013

Contents

Preface ix

Abbreviations xiii

ExecutiveSummary xv

1.0 TaskForceReview:Context,ApproachandMethodology 1

1.1 Introduction 1

1.2 ContextandRationale 1

1.3 CompositionandTermsofReferenceoftheTaskForce 2

1.3.1 TheTaskForcecomprisesthefollowingMembers: 2

1.3.2 TermsofReferenceoftheTaskForce 3

1.4 ApproachandMethodology 3

1.5 StructureoftheReport 6

2.0 EvolutionoftheLegalFrameworkforDisasterManagementinIndia 8

2.1 Introduction 8

2.2 RecentGlobalTrendsinDisasterManagementLegislation 8

2.3 EvolutionofDisasterManagementLegislationinIndia 11

2.4 ConstitutionalProvisions 12

2.5 LegalFramework 13

3.0 BestPracticesinDisasterManagementLegislation:AGlobalReview 17

3.1 Introduction 17

3.2 ReviewofLegislationsofSelectCountriesfromtheDevelopedand DevelopingWorld 17

3.2.3 Queensland,Australia:ExemplaryResponsetoNeedfor DisasterManagementLegislation 18

iv

REPORT OF THE TASK FORCE: A Review of the Disaster Management Act, 2005

3.2.4 SouthAfrica:TheDisasterManagementAct,2002 19

3.2.5 SriLanka:TheDisasterManagementAct,2006 21

3.2.6 St.Lucia:TheDisasterManagementAct,2006 21

3.2.7 Thailand:TheDisasterPreventionandMitigationAct,2007 22

3.2.8 LawoftheRepublicofIndonesiaNo24of2007Concerning DisasterManagement 23

3.2.9 ThePhilippines:TheDisasterRiskReductionandManagementAct,2010 24

3.2.10 Japan:theJapanDisasterCounterMeasuresBasicAct1997 26

3.2.11 RobertT.StaffordDisasterReliefandEmergencyAssistanceAct,as Amended,andRelatedAuthorities,FEMA592,June2007and ThePost-KatrinaEmergencyManagementReformActof2006 27

3.2.12 NewZealand:CivilDefenceandEmergencyManagementAct,2002 30

3.2.13 AntiguaandBarbudaDisasterManagementAct,2002 31

3.3 HighlightsfromDifferentCountries 32

3.3.6 GeneralPrinciplesfortheInstitutionalandLegalSystemfor DisasterRiskManagement 35

3.4 ASummaryofFindings 35

4.0 AReviewoftheFunctioningofNationalLevelInstitutionsEnvisagedbythe DisasterManagementAct,2005 39

4.1. Introduction 39

4.2 InstitutionalArrangementsPriortotheDMAct,2005 39

4.3 InstitutionalStructuresEnvisagedbytheDMAct,2005 41

4.3.1 TheNationalDisasterManagementAuthority 41

4.3.2 NationalExecutiveCommittee 42

4.3.3 NationalInstituteofDisasterManagement 44

4.3.4 NationalDisasterResponseForce 44

4.3.5 Roles,ResponsibilitiesandFunctionsofMinistriesoftheGovernmentofIndia 45

4.4 ViewsandSuggestionsofStakeholdersduringthe RegionalandNationalConsultations 46

v

4.4.2 NationalDisasterManagementAuthority 46

4.4.3 NationalExecutiveCommittee 48

4.4.4 NationalInstituteofDisasterManagement 49

4.4.5 NationalDisasterResponseForce 49

4.5 AnOverviewoftheWorkingofNationalLevelInstitutions 50

4.6 IdentifyingAlternativestoImproveupontheAct’sExisting ProvisionsandFormulatingRecommendations 55

5.0 AReviewoftheFunctioningofDisasterManagementInstitutionsat State,DistrictandLocalLevel 70

5.1 Introduction 70

5.2 InstitutionalArrangementsPriortotheDMAct,2005 70

5.3 InstitutionalStructureEnvisagedbytheDMAct,2005 71

5.3.1 StateDisasterManagementAuthority 71

5.3.2 StateExecutiveCommittee 72

5.3.3 DistrictDisasterManagementAuthority 73

5.4 ViewsandSuggestionsofStakeholdersduringtheRegionaland NationalConsultations 74

5.4.1 StateDisasterManagementAuthorityandStateExecutiveCommittee 74


5.4.3 LocalAuthorities 77

5.5 AnAnalysisoftheWorkingofStateandDistrictLevelInstitutionsand Recommendations 78

5.5.1 StateDisasterManagementAuthorityandStateExecutiveCommittee 78


5.5.3 LocalAuthorities 84

6.0 RoleoftheGovernmentandFinancingArrangements 87

6.1 Introduction 87

6.2 RoleoftheCentralGovernment 87

vi


6.3 RoleofStateGovernments 89

6.4 PreparationofDisasterManagementPlans 90

6.5 RecommendationsonthePreparationofDisasterManagementPlans 92

6.6 FinancingArrangements 93

6.6.1 FinancingArrangementPriortotheDisasterManagementAct,2005 93

6.6.2 FinancingofDisasterManagementasEnvisagedbytheAct 97

6.6.3 ViewsofStakeholdersduringConsultations 98

6.6.4 AReviewoftheProvisionsoftheActandFormulatingtheRecommendations 99

6.6.5 SomeLimitationsoftheprovisions 105

6.7 RecommendationsonFinancingProvisionsoftheAct 106

7.0 OtherProvisionsoftheDisasterManagementAct,2005 108

7.1 Introduction 108

7.2 ViewsofStakeholdersduringConsultations 108

7.3 RecommendationsoftheTaskForce 113

8.0 ASummaryoftheRecommendationsoftheTaskForce 117

8.1 RoleandFunctionsoftheNationalDisasterManagementAuthority(NDMA) [Para4.6.2.6.1to4.6.2.6.4] 117

8.2 StructureoftheNDMA[Para4.6.2.6.5to4.6.2.6.8] 117

8.3 TheHighLevelCommittee(HLC)[Para4.6.2.6.9] 118

8.4 TheNationalExecutiveCommittee(NEC)[Para4.6.3to4.6.3.3.3] 118

8.5 TheNationalInstituteofDisasterManagement(NIDM)[Para4.6.4to4.6.4.4] 119

8.6 TheNationalDisasterResponseForce(NDRF)[[Para4.6.5to4.6.5.3.6] 120

8.7 StateDisasterManagementAuthority(SDMA)[Para5.5.1.1to5.5.1.5] 120

8.8 StateExecutiveCommittee(SEC)[Para5.5.1.6to5.5.1.8] 121

8.9 DistrictDisasterManagementAuthority(SDMA)[Para5.5.2to5.5.2.5.5] 122

8.10 LocalAuthorities[Para5.5.3to5.5.3.3.3] 123

8.11 PreparationofDisasterManagementPlans[Para6.4to6.5.8] 123

vii

8.12 FinancingProvisionsoftheAct[Para6.6.3to6.7.4] 124

8.13 OtherProvisionsoftheAct[Para7.2.1to7.3.18] 125

8.14 AdditionalProvisionsProposed 127

8.15 RiskTransferandInsurance 127

8.16 HumanResourceAspect 127

Annexure-I OfficeMemorandum:ConstitutionofTaskForceforareviewofthe DisasterManagementAct,2005 128

Annexure-II QuestionnairefortheReviewofDisasterManagementAct,2005 131

LIST OF BOXES

1.1 TermsofReferenceoftheTaskForce 3

1.2 MethodologyfollowedbytheTaskForce 6

2.1 RecentGlobalTrends 9

2.2 RoleofLawsandRegulations 11

2.3 ActsandRulesAddressingDisasterRiskReductionIssuesinIndia 14

2.4 ATimelineoftheEvolutionofDisasterManagementLawsinIndia 16

3.1 Queensland,Australia 19

3.2 SouthAfrica:DisasterManagementAct,2002 20

3.3 SriLanka:DisasterManagementAct,2006 21

3.4 St.Lucia:DisasterManagementAct,2006 21

3.5 Thailand:DisasterPreventionandMitigationAct,2007 22

3.6 LawoftheRepublicofIndonesiaNo24of2007ConcerningDisasterManagement 23

3.7 ThePhilippines:DisasterRiskReductionandManagementAct,2010 24

3.8 Japan:DisasterCounterMeasuresBasicAct1997 27

3.9 RobertT.StaffordDisasterReliefandEmergencyAssistanceAct,asamended, andrelatedauthorities,Fema592,June2007,andthePost-Katrina Emergencymanagementreformactof2006 28

3.10 BolivianLaw,2000 34

viii


3.11 HighlightsoftheUNDPStudyofBestPractices 36

4.1 NationalLevelInstitutionsPriortotheDisasterManagementAct,2005 40

4.2 NationalLevelInstitutionalStructureEnvisagedbythe DisasterManagementAct,2005 42

4.3 ViewsofStakeholdersDuringConsultations 51

4.4 AFrameworkofNationalLevelDisasterManagementStructuresinOtherCountries56

4.5 PerspectiveoftheTaskForceontheNDMA 58

4.6 RestructuringoftheNDMA 63

5.1 InstitutionalArrangementforDisasterManagementatStateand DistrictLevelPriortotheDisasterManagementAct,2005. 71

5.2 StateandDistrictLevelInstitutionalStructureEnvisagedbythe DisasterManagementAct,2005. 74

53 ViewsofStakeholdersduringConsultations 75

5.4 ViewsofStakeholdersontheDDMAandLocalAuthorities 77

5.5 RestructuringtheSDMA 80

5.6 RestructuringoftheDDMA 85

5.7 Roleofthelocalauthorities 86

6.1 RoleoftheGovernmentinDisasterManagement 88

6.2 PreparationofDisasterManagementPlans 92

6.3 FinancingArrangementsPriortotheAct 96

6.4 FinancingMechanismEnvisagedbytheAct 97

6.5 ViewsofStakeholdersonFinancialArrangements 98

6.6 FinancialProvisionsforDisasterManagementintheRecent DMLegislationinthePhilippines 100

6.7 FinancingProvisionsforDisasterManagementinSouthAfricaandColombia 106

7.1 SuggestionsofStakeholdersforNewProvisionsintheAct 116

ix

T his report is a comprehensive reviewof theDisasterManagementAct,2005,which for

the first time introduced a legal framework fordisaster management in India. It is an analysisoftheprovisionsoftheAct,notanevaluationofthe disaster management system in the country.The discussions pertaining to the structure andfunctioningofdisastermanagementorganisationsare primarily aimed at analysing implementationissuesrelatingtotheAct’srelevantprovisions.

As envisaged by the Disaster Management Act,2005, several new organisations/entities havebeen created at the national, state, and districtlevels.Someofthemhavedonewell.Forexample,the National Disaster Management Authorityhas issued comprehensive guidelines for disastermitigationandpreparedness.TheNationalDisasterResponseForcehascreatedanimpactinregardtosearchandrescueoperationsindisastersituations.The State Disaster Management Authorities insomeStateshavesignificantachievementstotheircredit. But the fact remains that the functioningof these entities at all levels is constrained bya lack of clarity on their roles as well as bystructural anomalies, dearth of human resourcesand inadequate infrastructure. Also, some of theAct’s provisions themselves have given rise toimplementationproblems.NotsurprisinglymuchofwhattheActmandatesisyettoberealised.Inmost cases, the new entities have not made anyappreciableimpact;someareevennon-functional.Further, institutional arrangements existing priorto theAct continue to remain in force.Needlesstosay,allthishascreatedaconfusingscenario.The

Preface

TaskForcehasmadeanattempt, though limitedtotheAct’sprovisions,toaddressthesesignificantissues.

Fromtimetotime,therehavebeenlaws,regulationsandcodes.Lawsprovideaformalbasisforaddressingcrucialissuesinsectorssuchasenvironment,healthand finance, and the larger terrain of economicdevelopment, among others. Regulations andcodes lay down specific norms and procedures.Thereareseverallaws,regulationsandcodeswhich,though they relate to sectoral activities, impingeon disaster management. However, the past fewdecadeswitnessedagrowingrealisationabouttheneedforabasiclegislationondisastermanagementthatwouldbecomprehensive,cuttingacrosssectorsinaholisticmanner. It is in this respect that theDisaster Management Act, 2005, has proved tobeamomentousmilestone,foritprovidesalegalbasis for disaster management activities relatedto mitigation, preparedness, response, recoveryand reconstruction across sectors. The Act alsooutlines organisational structures and financingarrangements at the national, state, district andlocallevels.

InthecourseoftheAct’simplementation,severalStates drew the attention of the Union Ministryof Home Affairs towards certain constraints andbottlenecks. Hence the Government of Indiaconstituted aTask Force on December 23, 2010,to review the Disaster Management Act, 2005.AccordingtotheTermsofReference,theTaskForcewasrequiredtosuggestnecessaryamendments,ifany,intheAct,basedonthesuggestionsemerging

x


from discussions with States/Union Territories/otherstakeholders.PartofthebriefwastostudydisastermanagementlegislationsinselectcountrieswithaviewtocullingoutbestpracticesthatcouldbeadaptedintheIndiancontext.

TheTaskForcehadseveralroundsofelaborateandwiderangingconsultations.Itconductedanumberof workshops and discussions with governmentorganisations, NGOs, and other stakeholders atthe national and regional levels. The approachand methodology adopted by theTask Force areoutlinedinChapter1ofthisreport.

Each chapter of the report addresses a broadthemeoraspect.Forexample,Chapter4criticallyexaminestherole,responsibilitiesandfunctioningof organisational structures at the national levelas envisaged by the Act in order to address theimplementation issues of its relevant provisions.Chapter 5 relates to state, district and local levelorganisationalstructures.Chapter6dealswiththerolesandresponsibilitiesofgovernments,andthefinancingarrangementslaiddownbytheAct.

We have tried to give a cogent structure to eachchapter,beginningwithanoutlineoftherelevantprovisions of the Act vis-à-vis institutionalarrangementsexistingpriortotheAct.Theoutlineis followed by a brief account of the feedback,views, and suggestions that emerged during themany consultations. After the feedback, comesan analytical review of the functioning of theinstitutional structures and the implementationoftheAct’srelevantprovisions.Theanalysisleadsto an attempt to identify alternatives for betterfunctioning and the required amendments in theprovisions.Finally,thechapterisroundedoffwiththe recommendations enumerated by the TaskForce.

Insomeofthechapters,therecommendationsarelistedindifferentsections,buttheyarerepeateden

blocattheendofthechapter.ThelastchapterofthereportbringstogetheralltherecommendationsoftheTaskForceinaconsolidatedmanner.Thoughthisapproachhasledtosomeamountofrepetition,theaimistoenabletheusersofthisreporttoaccessanyrecommendationwithease,dependingontheirspecificpurpose.

TheTaskForcewishes to express itsgratitude tothe former and present Union Home Ministers,Shri P. Chidambaram and Shri Sushil KumarShinde, respectively, for introducing and steeringtheprocessofreviewoftheDisasterManagementAct,2005,bytheTaskForce.

Inthecourseofexploringitsbrief,theTaskForcehad a detailed interaction with Shri ShashidharReddy, Vice-Chairman, National DisasterManagement Authority, and Members, NDMA,including Shri B.Bhattacharjee, Shri J.K.Sinha,Shri K.M.Singh, Maj.Gen J.K.Bansal, ShriT.NandaKumar,Dr.MuzaffarAhmed,Prof.HarshK.Gupta, and Shri V.K.Duggal. The NDMAtook pains to analyse various provisions of theAct and communicate the same in writing. Dr.Mohan Kanda, former Member, NDMA, hadmany insights to share. Although the PlanningCommission of India could not manage to havea discussion with the Task Force, it conveyeduseful views on the financing aspects of disastermanagementthroughwrittencommunication.

Shri R. K. Singh, Union Home Secretary, whohadan important role toplay in the formulationof the Act, along with members of the NationalExecutive Committee, devoted considerabletime to engaging with the Task Force, and hadextremely valuable points to make. Shri A.K.Mangotra, Secretary (Border Management) hasbeenatremendoussupporttotheTaskForce.ShriP.G.DharChakrabartiandShriSutanuBehuria,formerSecretaries,NationalDisasterManagementAuthority; Shri P.K. Basu, the then Secretary,

xi

Preface

DepartmentofAgricultureandCooperation;andShriSumitBose,thethenSecretary,DepartmentofExpenditure,MinistryofFinance,too,sharedtheirvaluable experiences. Sri Anil Sinha and Prof.V.KSharma,formermembersoftheHighPoweredCommittee(1999-2001)chairedbyShriJ.C.Pant,whichwaspossiblythefirsttoreflectontheneedforacomprehensivedisastermanagementsystemforIndia,provideduswithawealthofinsights.

TheTaskForcewasoverwhelmedbytheresponseoftheStates/UnionTerritories/otherstakeholderstothenationalworkshopandfiveregionalworkshopsorganisedby it.Alargenumberofseniorofficersparticipated in these workshops the logistics ofwhichweregraciouslyprovidedbythehostStates.The Task Force also had purposeful discussionswith District Collectors from areas that arechronically vulnerable to disasters.Without theirhardworkandsincereeffortstoprovidefeedbackwithclarity,thisreportwouldnothavegaineditsdepthofmeaning.

TheUNDPcontributedsignificantlybyuploadingthe questionnaire prepared by the Task Forceon various aspects of the Act on the SolutionExchange network of the UN system, compilingallthecommentspostedthereinandorganisinganexcellentworkshopof internationalorganisations,NGOsandothercivilsocietymembers.Thanksaredue toShriG.Padmanabhan,SeniorEmergencyAnalyst and Officer in Charge, DisasterManagementUnit,andMs.AbhaMishraandMs.RanjiniMukherjee,ProjectOfficers,UNDP,whosparedtheirtimetoassisttheTaskForce.

Inparticularwewouldliketoexpressourgratitudeto Dr. Krishna S. Vatsa, Regional Disaster RiskReductionAdviser(UnitedNationsDevelopmentProgramme/Bureau for Crisis Prevention andRecovery), and Dr. V. Thiruppugazh, AdditionalCEO, Gujarat State Disaster ManagementAuthority,fordevotingmuchtimeandenergyto

assistingtheTaskForce.Dr.Vatsamadepainstakingeffortstoprepareanelaboratequestionnairewhichformedthebasisoftheconsultations.Hestudiedavailable literature on the subject of disastermanagementandmademuchvaluedinterjectionsfrom time to time. Dr. Thiruppugazh, who hasrecently done his doctorial work in disastermanagement, not only studied international bestpractices to contribute to the effort of the TaskForce,butalsoparticipatedinthedeliberationsandhadconstructiveviewstocontribute.

MostofthemeetingsoftheTaskForcewereheldattheNationalInstituteofDisasterManagement,whichreadilymadeavailable itsconferenceroomfor the purpose, provided logistical support and,above all, aquiet and conducive environment fordeliberation.Apart fromthis, theTaskForcehada formal meeting with the National Institute ofDisasterManagementtoformallyelicittheirviewson theAct.TheTaskForce thanksDr.Satendra,ExecutiveDirector,Prof.SantoshKumarandothermembersof the faculty and staffof theNationalInstituteofDisasterManagement.

One must mention here the extremely positiveinteractions with Shri R. K. Srivastava and ShriJ.P. Misra, former Joint Secretary and Director(Disaster Management), respectively. We wouldalso like to thank several other officers of theDisasterManagementDivisionoftheMinistryofHomeAffairs forputting in agreatdealofhardwork to support theTask Force for over a year:Shri Ashok Shukla, Deputy Secretary (DM II),ShriAshishKumarPanda,UnderSecretary,(DMII),ShriChanderBhanandShriSaratPanda,bothConsultants. Acknowledgements are due to ShriR.G.Pillai,personalassistanttoChairmanGERC,whotypedthefirstdraftsofseveralchaptersofthisreport;also,MsPadmanabhanwhodidanexcellentjobofcopyediting.

TheTaskForcehasbeenassistedinitsendeavour

xii


by many people whom it is impossible to namehere individually–fromseniorofficersofvariousDepartmentsandMinistriesoftheGovernmentofIndiatoDistrictCollectors,amongothers.Toallofthemaswellasmanymorewhohavecontributedimmensely to this review, we offer our heartfeltgratitude.

TheChairmanoftheTaskForceplacesonrecordhisappreciationofthevaluablecontributionmadebytheMembersoftheTaskForce:Dr.ShyamS.Agarwal,Secretary,NationalDisasterManagement

Authority; Shri G.V.V. Sarma, Joint Secretary,DisasterManagementDivision,MinistryofHomeAffairs;andfromtheMinistryofLawandJustice,Shri Satish Chandra, Joint Secretary and LegalAdviser, Shri Chander Veer, Deputy LegislativeCounsel, and Shri Udaya Kumara, DeputyLegislativeCounsel

NewDelhi (Dr.P.K.Mishra)March8,2013 Chairman

xiii

ARC AdministrativeReformsCommissionATI AdministrativeTrainingInstituteBRO BorderRoadsOrganizationBSF BorderSecurityForceCAG Comptroller&AuditorGeneralofIndiaCEO ChiefExecutiveOfficerCISF CentralIndustrialSecurityForceCMC CrisisManagementCommitteeCMG CrisisManagementGroupCRF CalamityReliefFundCRPF CentralReservePoliceForceDC DistrictCollector/DeputyCommissioner/DistrictCommissionerDDMA DistrictDisasterManagementAuthorityDM DisasterManagementDMAct DisasterManagementActDGNDRF DirectorGeneral,NationalDisasterResponseForceDPAP DroughtProneAreasProgrammeDRDA DistrictRuralDevelopmentAgencyDRDO DefenceResearch&DevelopmentOrganisationEOC EmergencyOperationsCentreFC FinanceCommissionFEMA FederalEmergencyManagementAgencyHPC HighPoweredCommitteeHFA HyogoFrameworkforActionHLC HighLevelCommitteeICDM Inter-GovernmentalCommitteeonDisasterManagementIDNDR InternationalDecadeforNaturalDisasterReductionIEC Information,Education&CommunicationIIPA IndianInstituteofPublicAdministrationIMD IndiaMeteorologicalDepartmentIMG Inter-MinisterialGroupISDR InternationalStrategyforDisasterReductionITBP Indo-TibetanBorderPoliceLBSNAA LalBahadurShastriNationalAcademyofAdministrationLDRRMF LocalDisasterRiskReductionandManagementFund

Abbreviations

xiv


MHA MinistryofHomeAffairsMGNREGA MahatmaGandhiNationalRuralEmploymentGuaranteeActNDM NaturalDisasterManagementNCCF NationalCalamityContingencyFundNCCM NationalCentreforCalamityManagementNCDM NationalCentreforDisasterManagementNCMC NationalCrisisManagementCommitteeNDMO NationalDisasterManagementOfficeNCRWC NationalCommissiontoReviewtheWorkingoftheConstitutionNDMAF NationalDisasterManagementAdvisoryForumNDMF NationalDisasterMitigationFundNDPMC NationalDisasterPreventionandMitigationCommitteeNDRF NationalDisasterResponseForce/NationalDisasterResponseFundNDRRMC NationalDisasterRiskReductionandManagementCouncilNDMA NationalDisasterManagementAuthorityNEC NationalExecutiveCommitteeNEMA NationalEmergencyManagementAuthorityNFCR NationalFundforCalamityReliefNGO Non-GovernmentalOrganisationNHRC NationalHumanRightsCommissionNIDM NationalInstituteofDisasterManagementOM OfficeMemorandumPMO PrimeMinister’sOfficeRKVY RahstriyaKrishiVikasYojanaSCMC StateCrisisManagementCommitteeSDMA StateDisasterManagementAuthoritySDMF StateDisasterMitigationFundSDMO OfficeofSDMASDRF StateDisasterResponseFundSEC StateExecutiveCommitteeSFDR StateFundforDisasterResponseUN UnitedNationsUNDP UnitedNationsDevelopmentProgrammeUNISDR UnitedNationsInternationalStrategyforDisasterRiskReductionUSA UnitedStatesofAmericaUTs UnionTerritories

xv

Context, Approach and MethodologyTheDisasterManagementAct,2005,(alsoreferredtoasthe‘DMAct,2005’and‘theAct’inthisreport)is an important milestone in the evolution of alegalframeworkfordisastermanagementinIndia.Forthefirsttimeacomprehensivelawondisastermanagementatthenationallevelwasenactedwiththe passage of the Disaster Management Act inDecember2005,althoughafewStateshadenactedtheir own disaster management laws earlier, andseveral legislations already existed in regard toenvironmental damage, building structure safetyandfirehazards.

AsenvisagedbytheAct,severalneworganisations/entities have been created at the national, state,and district level. Some of them have done well.For example, theNationalDisasterManagementAuthority (NDMA) has issued comprehensiveguidelinesfordisastermitigationandpreparedness.The National Disaster Response Force (NDRF)has made an impact in respect of search andrescueoperationsindisastersituations.SomeStateDisasterManagementAuthorities(SDMAs)havesignificantachievementstotheircredit.

Inrecenttimes,however,severalStateshavedrawnthe attention of the Union Home Ministry toa number of constraints and bottlenecks in thecourseoftheimplementationoftheAct.

Consequently,theMHA,GoI,constitutedaTaskForceonDecember23,2011, to review theDMAct,2005,andsuggestappropriateamendments,if

Executive Summary

required.TheTermsofReferencefortheTaskForceincluded consultations with States/UTs/otherstakeholders through workshops at the regionalandnationallevelwithaviewtocreatingabodyofconstructiveviewsregardingtheimplementationoftheAct.TheTaskForcewasalsoaskedtoexaminebestpracticesindisastermanagementlegislationinaselectnumberofcountries.

The methodology of the Task Force compriseddeskreviewsofkeydocuments,elicitingviewsandfeedback through a comprehensivequestionnaire,consultationthroughonenationalandfiveregionalworkshops, several consultation meetings withcentral Ministries and other organisations, andconsultation through the Solution Exchangenetwork of the UN system. Thus the TaskForce had wide-ranging consultations with thegovernments of States and UTs, GoI Ministriesand agencies, international organisations, civilsocietyandacademics.

Evolution of the Legal Framework for Disaster Management in IndiaToalargeextenttheoriginsoftheDMAct,2005,canbetracedtothethinking,ideasandeventsofthedecadeprecedingit–globallyandnationally.

Globally, a paradigm shift in the approachtowards disaster management, from relief andrehabilitation to prevention and mitigationthrough a holistic and comprehensive approach,was triggered by the UN’s move to observe the1990s as the International Decade for Natural

xvi


Disaster Reduction (IDNDR). The Yokohama Strategy and Plan of Action for a Safer World, 1994, and the Hyogo Framework for Action 2005-2015: Building the Resilience of Nations and Communities to Disasters (HFA), 2005,adoptedby theUNprovided further impetus tothis new holistic approach.The focus turned tolegislation,policyandinstitutionalarrangementsasimportantingredientsofaholisticapproachtodisastermanagement.Infact,theHFAidentifieslegislation as a critical aspect in determininga comprehensive approach to disaster riskreduction.A2011studyoftheISDR–theGlobal Assessment Report on Disaster Risk Reduction, 2011–indicatedthat48countriesreportedsubstantialachievements in national policy and legislationon disaster management in this regard. At thenational level such legislation is often triggeredbyfactorssuchasmajordisasters,politicalshifts,or the engagement of particularly dynamicindividuals and participative communities. InIndia, the 1999 Odisha super cyclone, the 2001Gujarat earthquake and the2004 IndianOceantsunami proved to be watershed events whichcatalysed the enactment of a national law ondisastermanagement.

Legislation provides a formal basis for disastermanagement activities relating to preparedness,response,recoveryandreconstruction.Itsupportsorganisational arrangements and plans, allocatesmajor legal responsibilities all of which arecrucial for proper implementation. By describingspecific norms and procedures, laws, regulationsand codes also create structures of incentivesand disincentives. In the past few decades, lawshavebeenenactedinIndiatorespondtosectoralissues,beitenvironmentalprotectionoreconomicdevelopment. By and by there was a realisationthat while such laws addressing sectoral issueshadabearingondisastermanagement,itwasnotadequate.Therewasaneedforonecomprehensive

law that cut across all sectors with its holisticconception of disaster management. As legalframeworks and institutional arrangements areinterlinked, a review of laws relating to disastermanagementwould invariably involveananalysisoforganisationalstructuresatdifferentlevels,andtheirrolesandfunctions.

In India, Famine Codes developed in the 19thcenturyprovideda formalbasis fordisaster reliefactivities, as did the Relief Manuals introducedby States both before and after Independence.The Environment (Protection) Act, 1986 and anumber of rules under the Act were significantdevelopments which followed the Bhopal gasdisaster.SeveralotherActs,rulesandcodesrelatingtothesubjectsofwater,air,fire,chemicals,microorganisms, among others, were enacted at thenationalandstatelevel.

TheHighPoweredCommittee(HPC)constitutedby the Government of India, which submittedits report in October 2001, prepared a draftNationalCalamityManagementActaswellasaModelStateDisasterManagement Act.Whileconsidering the recommendations of the HPC,the GoI took a view that instead of a centrallegislation,theStatesshouldbeadvisedtoenacttheir own respective legislations. One reasonfor this could have been that the Constitutionof India does not explicitly mention disastermanagementasasubjectinanyofthethreelistsoftheSeventhSchedule.Inthemeantime,StatessuchasGujarat,Bihar,UttarPradeshandthethenUttaranchal enacted their own legislations ondisastermanagement.However,intheaftermathof the 2004 Asian tsunami, the GoI decidedthat a central law on disaster management wasessential.ThustheDMAct,2005,whichbroughtunder its purview the entire country, was theculminationofaprocessthathadstartedalmostadecadeearlier.

xvii

Executive Summary

Lessons from Best Practices in Other Countries TheTaskForcetookintoconsiderationthefindingsof a study on disaster management legislationsof countries such as Australia, South Africa, SriLanka,Thailand,Indonesia,thePhilippines,Japan,USA, New Zealand, and St. Lucia. Though thelegal framework depends on factors such as thenature of hazards, the political set-up, size andlocationofacountryand its socio-economicandhistorical background, there are some commonfeaturesinthedisastermanagementlegislationsofthecountriesthatwerestudied:

• Most countries favour adual structuredmodelofdisastermanagement,basedontheprincipleof separation of powers. A national council/committee chaired by the President or PrimeMinisteroraMinisterisresponsibleforpolicymaking, monitoring and providing guidelines,while the executive wing, with full-timeprofessionals, is in charge of implementationand operation. This structure is replicated atprovincialandotherlevels.

• Almost all the Acts have a provision for thedeclaration of a disaster which triggers post-disaster response, both in terms of rescue andrelief,followedbyreconstruction.

• Themunicipalbodiesandlocalgovernmentsareresponsible for disaster management activitieswithin their jurisdictions. In order to attend toissuesandchallengesinlargecitiessomecountries,e.g.,ThailandandBolivia,haveincludedaspecialprovisionandfocusintheirActs.

In most countries, the responsibility for disasterresponse lies with the local and the provincialgovernments.Theroleofthenationalgovernmentissupportiveandsupplementary.Countrieswithastrongfederalstructuretrytoprovidemorepowerstoregionalandlocalgovernmentsbydecentralising

functions and responsibilities as in caseofSouthAfrica.

• Manycountrieshaveprovisionsforencouragingvolunteers and institutionalising their role indisastermanagementactivities.

• Inmanycountriesthereareseparatelegislationstodealwithcivilemergenciesanddisasters.

The study also revealed aspects of disastermanagement in some countries that are not socommon:

• In Sri Lanka, the Leader of the Oppositionand five members from the opposition partyareincludedinthenationalcouncilwithaviewto ensuring a common approach to disastermanagement.

• Thelawsofsomecountries,e.g.,IndonesiaandJapan,followarights-basedapproachbutatthesametimeindicatethedutiesandresponsibilitiesofcitizensandcommunities.Receivingofficialreliefintheaftermathofadisasterhasbeenmadearightofaffectedcitizensinthosecountries.

Functioning of National Level Institutions Envisaged by the DM Act, 2005 The DM Act, 2005, provides for the setting upof institutional structures at the national, stateanddistrict levels.At thenational level there arefour important entities: the National DisasterManagement Authority (NDMA), the NationalExecutive Committee (NEC), the NationalInstitute of Disaster Management (NIDM), andthe National Disaster Response Force (NDRF).The Act lays down their structures, roles,responsibilities and functions. In addition, theAct enumerates the measures to be taken by theMinistries of theGoI. In fact, theActmandatesthat every Ministry or Department of the GoI

xviii


bearsresponsibilityfordisastermanagement.

However,thearrangementsthatexistedpriortotheActcontinuetoremaininforce.Forinstance,theNationalCrisisManagementCommittee(NCMC)headedby theCabinetSecretarycoordinatesandguides the work of GoI’s Departments at a timeof crisis. A Crisis Management Group (CMG)headed by a senior officer of the nodal Ministrymeetsfromtimetotimeintheeventofdisastersto coordinate at the central level and liaise withstategovernmentsandotheragenciesforresponseandreliefactivities.ThereisalsoaCentralCrisisGroup (CCG) under the chairpersonship of theSecretary, Ministry of Environment and Forests,for the management of chemical accidents. TheHigh Level Committee (HLC) headed by theUnionAgricultureMinister/HomeMinistertakesdecisionsregardingfinancialassistancetoStatesinthecontextofnaturaldisasters.

Theinstitutionalstructurefordisastermanagementat the national level appears to be in a state oftransitionwith theearlierarrangementaswellasthenewstructureexistingsidebyside.Forexample,itistheHLCthattakesafinalcallonassistancetoStatesbasedontherecommendationsoftheInter-Ministerial Group (IMG). The NDMA has noroleinthisasinmanyothermatters.Atthetimeofcrisis,theNCMCtakesover;theNEChardlyhasanyroletoperform.

• Based on its extensive consultations withstakeholdersanditsownanalysis,theTaskForcehasexaminedindetail theworkingofnationallevel structures envisaged by the Act. Whiletheconsultationsthrewupaspectrumofviewson this aspect, they also revealed a surprisingconvergenceonmanyissues:ThoughtheNDMAhascertainachievementstoitscredit,e.g.,issueofusefulguidelines, itspresentstructure isnotconduciveforcarryingoutthetasksithasbeenmandatedtoperformundertheAct.

• ThereisaneedtoredesigntheNDMA’sstructure,ensuringgreaterobjectivityandtransparencyinselectingMembers.

• TheNEC,whichhasbeenassignedcrucial,andmultifarious,activitiesundertheAct,hasfailedtodeliver.

• ThereisalackoffunctionalintegrationbetweentheNDMAandtheNEContheonehand,andtheNDMAandtheMHAontheother.

• Even the Ministries/Departments of the GoI,includingtheMHA,havenotbeenabletofulfillthe mandate given to them by the DM Act,2005.

• The NIDM has not been able to fulfill theexpectationsofStatesandUTs.

• TheNDRFappearstobeasuccessstory.

In view of the above, there is a need to revisitthe role, function and structure of the NDMAand NEC. The Task Force considered variousalternatives regarding the function and structureof theNDMA.Asregardstheroleandfunction,the NDMA should not remain merely a thinktank without any link with ground realities. Itsrole and functions should cover policies, plans,guidelines and regulations relating to prevention,mitigationandpreparedness.Itshouldcoordinatewiththeagenciesconcernedsothat theactivitiesenvisagedbytheActareeffectivelyperformed.TheNDMAneedstobeempoweredsoastoenableittodischargeitsresponsibilitiesmoreeffectively.Atthesametimeitshouldbeheldaccountableforthesatisfactory performance of the tasks assigned toit.Inordertoachievethisobjective,theNDMAneeds to be restructured appropriately. In ordertoraise theprofileof theNDMA,itneedstobeintegratedwiththerelevantMinistries,asinmanyothercountries.Therestructuringof theNDMAandtheNEC/NCMCshouldbebroadlyasfollows(thedetailedrecommendationsof theTaskForce

xix

Executive Summary

areenumeratedinChapter4):

• The NDMA should have not more thanfour full-time Members, including the Vice-Chairperson; it could have other members inan ex officio capacity, such as the Ministers ofHome, Defence, Finance, Agriculture, andUrbanDevelopment.

• Oneofthefull-timeMembersmaybedesignatedastheMemberSecretary.

• Thecriteriaofselection,tenureandothertermsandconditionsofserviceoffull-timeMembersmaybeclearlyspecified.

• The HLC may be included in the DM Act,2005.

• TheNDMAshouldhavethepowerstorecruitandappointofficers and staff in respectof thepostssanctionedbytheGoI.

• ThefunctionsofNECenvisagedinSection10(2)–-otherthanclauses(e),(f ),(g),(i)and(k)–maybeassignedtotheNDMA.

• The NEC may be discontinued. The NCMCmay be included in the DM Act, 2005, andperformthetasksspecificallyrelatedtoresponseandcoordinationasenvisagedbySection10oftheAct.

• The DM Division of the MHA needs to bestrengthened so that it can give secretariatsupport to the NCMC and perform otherfunctionsmandatedbytheAct.

• The provisions of the Act would be effectivelyimplemented only when there is an optimalprofessionalset-uptoperformthetasks.Indeed,there is a need to analyse the administrativestructure and professional competence ofthe DM division of the MHA, the NDMA,SDMAs and DDMAs. A cadre of disastermanagement professionals may be set up, and

trainingandeducationfacilitiesinthisareaneedtobeexpanded.Anindependentexerciseshouldbeundertakenforthispurpose.

As regards the NIDM, issues regarding itsautonomy vis-a-vis the desirability of integrationwiththeMHAorbecomingthecapacitybuildingarmoftheNDMAwereexamined.TheTaskForceisofthefollowingview:

• As NIDM’s Governing Body already hasa representation from the NDMA and theMHA, and as the Act already provides that ithas to function within the broad policies andguidelines laiddownby theNDMA, it shouldfunction autonomously with respect to itsactivitiesandhumanresourcepracticesandnotas a subordinate organisation of the NDMA/MHA for the functions entrusted to it by theAct.

• TheNIDMshouldhavepowers to recruitandappointofficersandstaffinrespectofthepostssanctionedbytheGoI.

AsregardstheNDRF,theTaskForceisoftheviewthatithasperformedquitewell.Thereisnoneedto amend the existing provisions relating to theNDRFintheDMAct,2005.However,theTaskForce has suggested two administrative measureswithregardtotheNDRF:

• At present, NDRF personnel come fromdifferent Forces and return to their parentorganisationafteraspecifiedperiod.Thismeansthat the skill, experience and expertise theydevelopwhileworkingwith theNDRFmightnotbeavailablefordisasterresponseaftertheyleave the Force. Either some of them may beallowedtocontinue,ortheNDRFmayrecruitsomeofitspersonnelsothatthereiscontinuityand institutional memory in respect of sometypesofexpertise.

xx


• ThepresentarrangementoftheDirectorGeneral(DG) NDRF, also performing the duties ofCivilDefence,HomeGuardsandFireServicescan help the integrate disaster managementactivities of these organisations. However, theDG,NDRFandCivilDefence, shouldnotbegivenanyotheradditionaldutiesofanycentralarmedpoliceforce.TheDGshouldalsohaveanadministrativereportinglinetotheNDMAandideallyshouldbeundertheadministrativecontroloftheNDMAasanofficerondeputation.

Functioning of Disaster Management Institutions at the State, District and Local levelsAs stated earlier, the primary responsibilityfor organising rescue, relief and rehabilitationmeasures in disaster affected areas is that ofthe state government concerned. The GoIsupplements the efforts of the state governmentthroughpolicy,financialandlogisticalsupport.

Traditionally,theRevenueDepartmenthasbeeninchargeofdisastermanagement,whichwaslimitedto response and rehabilitation. In recent years afewStateshavecreatedaseparateDepartmentofReliefandRehabilitation,thelatterincludingtherehabilitation of persons displaced by irrigationand other developmental projects as well. SomeStates, at the instanceof theGoI, renamed theirDepartment of Relief and Rehabilitation as theDepartment of Disaster Management, whileothers added a division of disaster managementwithintheRevenueDepartment.TherecontinuestobeapostofReliefCommissionerwhoisaheadofthedepartmentundertheRevenueDepartmentsupervising response and relief activities in thedistrictsatthetimeofcyclone,drought,floodandotherhazardevents.

The apex level coordination mechanism at thestate level is the State Crisis Management

Committee (SCMC) headed by the ChiefSecretary. The Committee coordinates all theactivitiesofresponseandrelief intheeventofacrisis.There is also aStateCrisisGroup (SCG)headedbytheChiefSecretaryformanagementofchemicalaccidents.

At thedistrict level, theDistrictCollector is thefocal point for managing disasters. The districtlevel ismost crucial formanagingdisasters. TheDistrictCollectorinteractswithdistrictandstatelevelorganisationsaswellasCentralGovernmentDepartments/Agencies.

TheDMAct,2005,provides for theconstitutionofSDMAsatthestate levelandDDMAsatthedistrictlevel.ItalsoprovidesfortheestablishmentoftheStateExecutiveCommittee(SEC)headedbytheChiefSecretarytothestategovernment.

As in the case of the NDMA, there are severalissuesandconstraintsregardingthestructure,role,and functions of theSDMAand theSEC. TheSDMAhasacrucialroleindisastermanagement,particularly in regard to prevention, mitigationandpreparedness.AllStatesandUTshavecreatedSDMAs,butwiththeexceptionofafewmostofthe SDMAs appear to exist as a mere formalityin the form of a committee. In many cases notmuchefforthasgoneintomakingthemfunctional.In most cases, there are constraints of humanand financial resources. There are also problemsof ambiguity regarding their roles. The case ofDDMAsisnodifferent.Further,theroleoflocalauthoritiesneedstoberevisited.

In regard to the restructuringof theSDMAandSEC, the Task Force has made the followingrecommendations:

• The Members of SDMA may be ex-officio asin severalStates atpresent.However, the stategovernmentmayhavethediscretiontoappointnotmorethantwofull-timeMembers.

xxi

Executive Summary

• Ministers of relevant departments, the ChiefSecretary, the Director General of Police, andoneortwoeminentexpertsmaybeincludedasMembers.

• Full-timeMembersof theSDMA, ifany,maybe selected through an open and transparentprocess.

• The SDMA should have a secretariat withprofessional staff and a CEO of the rank ofPrincipal Secretary to the state government.The Relief Commissioner could function asAdditionalCEO.Asanalternative,especiallyinsmaller States, the Relief Commissioner couldfunctionastheCEO,SDMA.

• TheSDMAshouldhavepowerstorecruitandappoint officers and staff with respect to thepostssanctionedbythestategovernment.

• ThefunctionsoftheSECmentionedinSection22,otherthanclauses(a),(d),(e),(f ),(g),(h),(l),(o),(p)and(q),maybeassignedtotheSDMA.

• TheSECmaybediscontinued.

• The SCMC may be included in the DM Act,2005,andperformthetasksparticularlyrelatingto response and coordination as envisaged bySection22oftheAct.

TheDDMAmayberestructuredasfollows:

• Inaddition to those specified inSection25oftheAct,theDDMAshouldhavetwoeminentpersons with experience and knowledge ofdisastermanagementasMembers.Ifnecessary,thenumberofMembersmaybeincreasedfrom7to9.

• The DDMA should have a separate office orsecretariatwithprofessionalstaff.

• TheDDMAshouldbevestedwithsomepowerswithrespecttosanctionedposts,torecruitandappointpersonnelandengageconsultants.

• The powers and functions of the DDMA

envisagedinSection34oftheActmaybevestedintheDistrictCollector.

As regards Local Authorities, the followingsuggestionsaremade:

• Section 41 of the Act may incorporate thefollowing: Local authorities should have theresponsibility of ensuring compliance withlaws,codesandrulesrelatingtobuildingsafetyand fire safety, and they should be specificallymentionedashavingaresponsibilitytopreparedisastermanagementplans.

• Chapter 6 of the Act may create a provisionwhichenablesthestategovernmenttoconstitutea Disaster Management Authority for largecities,e.g.,thosewithmunicipalcorporations.

• The Mayor of the Municipal Corporationmay be the Chairperson, with the MunicipalCommissioner, Police Commissioner, DistrictCollector and two experts/specialists asMembers.

Role of Governments and Financing ArrangementsTheDMAct,2005,veryclearlyenvisagesthateveryMinistry/Department of the GoI has statutoryresponsibilities regarding prevention, mitigationand preparedness, and response to disasters. TheAct makes it mandatory for every Ministry/Department to prepare its disaster managementplan.TheActenumeratescertainaspectswhicharetobeincludedintheplan.Italsostipulatesannualreviewsandupdatesoftheplan,andtheapprovaloftheoriginalorupdatedplanbytheNDMA.Itenjoins upon the Ministries and Departments tomakeprovisionsforfinancingtheactivitiesspecifiedin theplan and to furnish a status report on theimplementation of the plan to the NDMA.TheActmandatesthattheCentralGovernmentortheMHA–theexpressionCentralGovernmenthere

xxii


refers to theMinistry/DepartmentofGoIwhichhasadministrativecontrolofdisastermanagement,inthiscasetheMHA–mustcoordinatetheaboveactivitiesoftheMinistriesandDepartmentsoftheGoI.ItistheresponsibilityoftheMHAtoensurethat the various Ministries/Departments of theGoIperformthetasksassignedtothembytheActand,forthispurpose,maketherequiredfinancialprovisions so that they are able to carry out theactivities included in the plan. There are similarprovisionsrelatingtothestategovernments.

Itseems,however,thateffectivemeasuresareyettobetakenbygovernments,eventhoughtheActhasbeeninoperationforoversevenyears.

The Act provides for disaster managementplans at the national, state and district levels.It also provides for the preparation of suchplans by Central Ministries/Departments, stategovernment departments, district level offices oftheGoIandstategovernments.Whentherearesomanytypesofplanstobeprepared,itisessentialtoensurethattheyareconsistentwitheachother,adequateandrelevant.Itisalsonecessarytohavea mechanism to ensure that these plans are notmerelyaformality,butareoperationalandupdatedonaregularbasis.

The present system of financing disastermanagement in India is based on therecommendations of successive FinanceCommissions (FCs). The recommendations oftheFCsarebasedontheprinciplethatfinancialassistance toStates shallbe limited toprovidingimmediaterelieftothevictimsofnaturalcalamitiesandtorestoringpublicutilitiessothattheaffectedcommunities are able to get back on their feetagain. The reconstruction of damaged assets isfunded from resources meant for developmentschemes. The relief-centric approach to thefinancingarrangementdoesnotaddress issuesofprevention,mitigationandpreparedness.

BasedontherecommendationoftheNinthFC,aCalamityReliefFund(CRF)wasconstitutedintheearly1990sforeachStateforimmediatereliefintheeventofadisaster.ThequantumisdeterminedbytheFCwiththeCentralGovernmentandthestategovernmentconcernedcontributing75percentand25percentoftheCRF,respectively.InadditiontotheCRF, theNationalFund forCalamityRelief(NFCR)wascreatedatthenationalleveltoassistStates in the event of a calamity of rare severity.Subsequently, the NFCR was replaced by theNationalCalamityContingencyFund(NCCF).

In addition to financing response and relief,the DM Act, 2005, aims to address the issue offinancingprevention,mitigationandpreparednessmeasures. At the national level, the Act providesfor two Funds, namely, the National DisasterResponse Fund (NDRF) and the NationalDisasterMitigationFund(NDMF).Theformeristobeusedforaddressinganythreateningdisastersituation, or disaster. The second Fund is meantexclusively for thepurposeofmitigationprojects.The Act provides for similar funds at the stateanddistrictlevel.TheActfurthermandateseveryMinistry /Department of the central and stategovernments to make requisite provisions in itsannualbudgetforthepurposeofcarryingouttheactivitiessetoutinitsdisastermanagementplan.

BasedontherecommendationsoftheThirteenthFC(2010-15), theNCCFhasbeenconverted tothe NDRF and the CRF to the State DisasterResponseFund(SDRF).TheNDMFisyettobecreated. There have been a series of discussionsand interactionsamongtheMinistriesconcernedandthePlanningCommission.Oneviewisthatmitigation activities can be funded through thenormalbudgetandthatthereisnoneedtocreatea separate fund. Only five States, namely, Bihar,Karnataka,Kerala,MaharashtraandUttarakhandhavecreatedaMitigationFunduntilnow.Fundsatthedistrictlevelareyettobecreated.

xxiii

Executive Summary

Havingconsideredallaspectsaswellastheviewsof stakeholders, theTask Force recommends thefollowing:

• TheNDRFand theNDMFareamustat thenational level. The provisions of Sections 46and47oftheActshouldberetained.However,thesourceofeachFundanditslinkagewiththerespective State Fund may be specified in theActorrules.

• AtthestatelevelitisdesirabletohaveboththeSDRFandtheSDMF.Thesourceofeachandits linkage with the respective National FundmaybespecifiedintheActorrules.

• It is essential to work out – through rules oradministrative measures – a mechanism orprocedurefordeterminingthesizeandsourceoftheNDRFandSDRF.Forexample,theFinanceCommissions may be mandated to determinetheseaspectseveryfiveyears.

• For National and State Mitigation Funds, theguidelines with respect to the utilisation offundsandtheidentificationofprojectsmaybeprepared by the NDMA in consultation withthePlanningCommission.

• As regards district level Funds, the stategovernment may decide whether to haveresponse and mitigation funds, or to put inplace a separate mechanism for timely accesstofinancialresourcesbythedistrictauthorities.Section48maybeamendedasdiscussedintheparagraphs6.6.4.7.

• In Section 46, the nomenclature ‘NationalDisaster Response Fund’ may be changed to‘NationalFundforDisasterResponse’(NFDR).Similarly,inSection48,thenomenclature‘StateDisaster Response Fund’ may be changed to‘StateFundforDisasterResponse’(SFDR).

Other Provisions of the Act Inadditiontoaspectssuchasinstitutionalstructures,functioning of various entities, and financialarrangements,theTaskForcehasexaminedotherprovisionsoftheAct,too.Inaddition,therewasa suggestion from the stakeholders to includeadditional provisions in the Act. Chapter 7 ofthe report contains a detailed analysis of thesesuggestionsaswellastherecommendationsoftheTaskForce.Someimportantrecommendationsarebrieflymentionedbelow:

• Thereshouldbeaspecificmentionofprotectionoftheinterestsofwomen,children,thedisabled,andtheweakersections.

• The Act should incorporate the duties,responsibilitiesandroleofthecommunity.

• Community based disaster preparedness maybe included in the provisions related to localauthorities.

• Roles and responsibilities of Civil Defence,Home Guards and Fire Services may beincluded.

• The Act should also lay down the role,responsibilityandliabilityoftheprivatesector.

• There should be a provision for a grievanceredress mechanism in the context of relief,rehabilitation,andreconstruction.

• Inmanycountriesvolunteersplaya significantrole in response activities, among others. TheActshouldhavesuchaprovisiontoencouragethe participation of volunteers in disastermanagement.

• TheActshouldalsoprovideforthepunishmentof persons/organisations/bodies found to havea hand in creating dangerous conditions byviolatingsafetylawssuchastheStateBuildingCodeorStateFireCode.

1

1.1 Introduction The MHA, GoI, constituted a Task Force onDecember23,2011,toreviewtheDMAct,2005,and suggest amendments, if any. The Terms ofReference included a detailed consultation withall States/Union Territories/other stakeholders,aswellasastudyofbestpracticesinthedisastermanagementlegislationsofselectcountries.

SectionIofthischapter:

• outlines the context and rationale for theconstitutionoftheTaskForce

• laysoutthecompositionoftheTaskForceanditsTermsofReference

SectionII:

• describes the approach and methodologyadoptedbytheTaskForcetoarriveatitsfindingsandformulateitsrecommendations

Section i

1.2 Context and Rationale1.2.1 The DM Act, 2005, is an importantmilestoneintheevolutionofalegalframeworkfordisastermanagementinIndia.Itwasthefirsttimethatacomprehensivelawondisastermanagementwasenactedatthenationallevel.Intheaftermathof the Bhopal gas disaster, Parliament of Indiapassed the Environment (Protection) Act, 1986,withaviewtoaddressingtheissueofenvironmentaldamage and pollution in relation to industrial

Task Force Review: Context, Approach and Methodology1

activities. The Hazardous Wastes (Managementand Handling) Rules, 1989, as well as theManufacture, Storage and Import of HazardousChemicals Rules, 1989, were framed under thisAct.Personshandlinghazardous substanceshavetocomplywiththeproceduresandsafeguardslaiddownintheserules.

Following the 2001 Kutch earthquake, theGovernment of Gujarat put in place a legalframework in the form of the Gujarat StateDisasterManagementAct,2003.At thenationallevel, however, a legal framework for disastermanagementwasintroducedonlyin2005withthepassingoftheDisasterManagementAct,2005.

1.2.2 TheDMAct,2005,emphasisespreventionandmitigationof theeffectsofdisasters througha holistic, coordinated and prompt response. Itis mandated to provide for requisite institutionalmechanisms to draw up disaster managementplansandmonitortheirimplementation.TheActprovidesfor:

• thecreationofaNationalDisasterManagementAuthority under the chairmanship of thePrime Minister, State Disaster ManagementAuthorities under the chairmanship of ChiefMinisters, and District Disaster ManagementAuthorities headed by District Magistrates,respectively

• theconstitutionofaNationalDisasterResponseForce

• the establishment of the National Institute ofDisasterManagement

2


• theinstitutionoftheNationalFundforDisasterResponse and the National Fund for DisasterMitigation, and similar funds at the state anddistrictlevels

• a specific role for local bodies in disastermanagement, including the Panchayati RajInstitutions and Urban Local Bodies likemunicipalities

1.2.3 TheNDMAwassetupin2005followingwhichmostStateshaveestablishedstateanddistrictleveldisastermanagementauthorities.MostStateshaveadoptedtheframeworkoftheCentralAct–thatis,theDMAct,2005.EvenpriortothisAct,someStateshadenacted theirownStatedisastermanagement laws.There continues to be a widevariation in the structure of SDMAs and otheraspectsacrossStatesandUTs,evenamongthosewhohaveadoptedtheDMAct,2005.

1.2.4 Inrecenttimes,severalStateshavedrawntheattentionoftheMHAtoanumberofconstraintsand bottlenecks experienced in the course ofimplementationof theDMAct, 2005. Someofthem – Rajasthan, Uttar Pradesh, West Bengal,Karnataka,andtheAndamanandNicobarIslands(UT),amongothers–havesuggestedamendmentstotheAct.Afewhavebeenmentionedbelowforthepurposeofillustration:

• Section6oftheActshouldbeamendedsothatthe NDMA has the powers and resources tofinanciallysupportSDMAsandSDRFs.

• Section14(4)oftheAct,whichstatesthattheChairperson of the SEC shall be the ChiefExecutiveOfficeroftheStateAuthority,shouldbeamended so that the stategovernment hasthe liberty to nominate any person it deemssuitableasChairpersonoftheSECandCEOoftheSDMA.

• SDMA’sroleshouldbeclearlydefinedvis-à-vistheStateCabinetinSection18.

• Section 20 should provide for a more broad-based SEC through a provision for specialinviteemembers.

• TheReliefCommissioneroftheStateshouldbeaccordedanactiveroleintheSDMAandSEC.

• Section 25 should provide for a more broad-based DDMA through a provision for specialinvitees,includingelectedrepresentatives.

• As regards Section 48 relating to theestablishmentofFundsbythestategovernment,thereisnoneedforseparatedistrictlevelfunds.

• Thestate levelCrisisManagementCommitteeshouldbemadeapartofSDMA.

• The DM Act should incorporate and makemandatory multi-hazard building bye-lawsfor each Urban Local Body/ Panchayati RajInstitution/FloodZone.

1.2.5 The above suggestions were discussedduringthereviewoftheNationalActionPlanV(2011-12) by the Union Home Minister. It wasdecided that aTask Force should be constitutedto examine the relevant issues. Accordingly, itwasproposedthattheTaskForceshouldfunctionunder the chairpersonship of an eminent person,preferablyaservingorretiredSecretarytotheGoI–whohasworkedandcontributedsignificantlyinthefieldofdisastermanagement–toexamineandreviewtheDMAct,2005,andsuggestamendments,if any. Thus the MHA, GoI, constituted aTaskForce vide Office Memorandum No. 30-2/2011/NDM-II dated December 23, 2011. One moreMemberwasaddedvideOfficeMemorandumNo.30-2/2011/NDM-IIdatedFebruary3,2012.

1.3 Composition and Terms of Reference of the Task Force1.3.1 The Task Force comprises the following Members:

• Chairman: Dr. P.K. Mishra, former Secretary,Department of Agriculture and Cooperation,

3

Task Force Review: Context, Approach and Methodology

Ministry of Agriculture, GoI, and presentlyChairman, Gujarat Electricity RegulatoryCommission.

• Member:Dr.ShyamS.Agarwal(fromFebruary15,2013), (ShriP.G.DharChakrabarti (fromOctober8,2012toFebruary14,2013),andDr.Sutanu Behuria (from December 23, 2011 toOctober 7, 2012) in their tenure as Secretary,NDMA.

• MemberSecretary:ShriG.V.V.Sarma(fromNovember12,2012), andShriR.K.Srivastava(from December 23, 2011 to November 11,2012),currentandpreviousJointSecretary(DMDivision),MHA,GoI,NewDelhi.

• Member: Shri Satish Chandra, Joint SecretaryandLegalAdvisor,DepartmentofLegalAffairs,MinistryofLawandJustice,GoI,NewDelhi.

• Member:ShriChanderVeer,DeputyLegislativeCounsel, Legislative Department, Ministry ofLawandJustice,GoI,NewDelhi.

• Member: Shri Udaya Kumara, DeputyLegislative Counsel, Legislative Department,MinistryofLawandJustice,GoI,NewDelhi.

1.3.2 Terms of Reference of the Task Force

ThefollowingTermsofReferenceweredefinedtoenabletheTaskForcetoconductitsreview:

• Togather information fromStates/UTs/otherstakeholdersregardingtheconcernsoftheStates/UTs in the implementation/administration oftheDMAct,2005.

• To study existing best practices in disastermanagement legislation in a select numberof countries with a view to considering theiradoptioninIndia.

• To hold workshops at regional/national levelsfor consultations with States/ UTs/ other

stakeholders regarding the need, if any, foramendmentstotheDMAct,2005.

• To recommend amendments, if any, to theDMAct,2005,basedonthesuggestionsoftheStates/UTs/otherstakeholders

Section ii

1.4 Approach and Methodology1.4.1 TheTaskForcehelda seriesofmeetingsandconsultations.AtitsfirstmeetingonJanuary9,2012,attheNIDM,theTaskForcedeliberatedon its approach and methodology of work, anddecided to prepare a questionnaire on differentprovisionsoftheDMAct,2005,thatwouldformthebasisof interactionwithall stakeholders.Theobjectivewastoframethequestionsinawaythatwould crystallise issues of implementation of theAct.Adecisionwasalsotakentoenlistthehelpof two experts to prepare the questionnaire: Dr.Krishna Vatsa of UNDP, formerly of the IAS,withawide-rangingexperienceofandexpertisein

Box 1.1: TeRMs of RefeRence of The TAsk foRce

• To gather information from states/UTs/other stakeholders regarding concerns/limitations in the implementation of the DM Act, 2005:

• To study such Acts/ best practices on the subject of disaster management in a select number of countries.

• To hold workshops at regional and national levels for consultations with states/UTs/other stakeholders regarding the need, if any, for amendments to the DM Act, 2005.

• To recommend amendments, if any, to the DM Act, 2005, based on the suggestions of stakeholders.

4


disastermanagement,andProf.V.K.SharmaoftheIndian Institute ofPublicAdministration (IIPA)who, too, has worked on the subject of disastermanagementforalongtimenow.

1.4.2 ItwasalsodecidedatthefirstmeetingthattheMHAwouldprepare the list of stakeholderswithwhomthequestionnairewouldbeshared.Tofacilitatethepreparationofthislistofstakeholders,the Task Force indicated towards the followingorganisations/agencies:

• AllthelineministriesoftheGoI.

• The departments and agencies of the GoIassociatedwithdisastermanagementfordetailedinteraction.

• TheNDMA,theNIDMandtheNDRF.ChiefSecretariesofallStates/UTs.

• ReliefCommissionersofallStates/UTs.

• Administrative Training Institutes of States(DisasterManagementCentres).

• Nationallevelacademicandtraininginstitutionssuch as the Lal Bahadur Shastri NationalAcademyofAdministration,Mussoorie;SardarVallabhbhai Patel National Police Academy,Hyderabad; Gujarat Institute of DisasterManagement Disaster Management Institute,Bhopal; and the National Law Universities atBangaloreandBhopal,respectively.

• NGOsandinternationalorganisations.

1.4.3 Thesecondmeetingof theTaskForceatthe NIDM was devoted to a detailed discussiononthedraftquestionnaire.Membersmadeseveralsuggestions for modification. The questionswere arranged chapter-wise keeping in view thestructure of the Act. It was decided that thequestionnaire would be circulated among all the

stakeholdersmentionedinthepreviousparagraph.Theywouldberequestedtosubmittheircommentsby May 15, 2012. This would be followed byregional consultations for detailed discussionswith States and UTs with regard to their viewsand suggestions. In addition, there would beinteractions with the GoI Ministries and otheragencies.ThequestionnairewouldalsobeuploadedonthewebsiteoftheMHA,GoI.

1.4.4 One of theTerms of Reference refers tothestudyofcurrentbestpracticesinlegislationondisastermanagementasevincedinaselectnumberofcountriesandtoconsidertheiradoptionintheIndianscenario.TheTaskForcedecidedthatDr.KrishnaS.VatsaandDr.ThiruppugazhwouldculloutbestpracticesfromcountriesaroundtheworldandsubmittheirfindingstotheTaskForce.

1.4.5 From April to June 2012, the TaskForceheldfive regional consultations inorder toascertaintheviewsofvariousStatesandUTs.Theconsultations were held at Shillong, Hyderabad,Ahmedabad, Chandigarh and Bhubaneswar forthe Sates and UTs of the North-East, South,West,NorthandEastzones,respectively.AlmostalltheStatesandUTsactivelyparticipatedintheconsultationworkshops.

1.4.6 The Task Force was engaged inconsultationswiththefollowingstakeholders:

• OnJune29,2012andJuly24,2012,respectively,theTaskForceheldtworoundsofconsultationswiththeNDMA.TheVice-ChairmanNDMA,Membersandseniorofficersactivelyparticipatedin the discussion. The NDMA submitteddetailed comments on the issues raised inthe questionnaire and contributed valuablesuggestionsrelatingtotheimprovementofthedisastermanagementsysteminthecountry.

• On June 29, 2012, the Task Force held aconsultationmeetingwiththeNIDM.

5


• On May 23, 2012, the Task Force held aconsultation meeting with the Ministry ofAgriculture (Department of Agriculture andCooperation).

• On July 24, 2012, the Task Force held aconsultation meeting with the Ministry ofFinance(DepartmentofExpenditure).

• OnJuly19,2012,theTaskForcehadadetaileddiscussion with the Home Secretary and theNEC. The Home Secretary as well as theMinistries represented in the NEC offeredcomprehensivecommentsonvariousprovisionsoftheDMAct,2005.

• Through a letter dated June 19, 2012,Chairman, Task Force, requested Secretary,Planning Commission, for a consultationmeeting. Subsequently,a letterdatedJuly19,2012,wasreceivedfromtheAdvisor,PlanningCommission,communicatingtheviewsof thePlanningCommissionconcerningtheNDMFand the allocation of funds by Ministries /Departments for disaster management.Member Secretary,Task Force, vide his letterdated August 2, 2012, once again requestedSecretary,PlanningCommission,forameeting.However, there has been no response to therequestuntilthetimeofthesubmissionofthisreport.

1.4.7 On July 23, 2012, the Task Force heldan interaction with international organisationsand national as well as international NGOs atthe UNDP conference room in New Delhi.Thequestionnaire prepared by the Task Force hadbeen circulated in advance through the SolutionExchange,aknowledgenetworkofUNagenciesinIndia,tosolicittheviewsofvariousorganisations,individualsandstakeholders.Mostoftheknowledgenetwork participants are professionals and manyamong them have a vast experience in disaster

managementactivities.TheviewsgatheredthroughthenetworkandconsolidatedbytheUNDP,alongwith the original questionnaire, formed the basisfordiscussionatthemeetingofJuly23,2012,evenasseveralotherissuesweretakenup.Themeetingwaswellattended.Valuablesuggestionsweremadeby international organisations, NGOs and civilsocietymembers.

1.4.8 At the fourthmeetingof theTaskForceheld on June 29, 2012, Dr. Thiruppugazh madea comprehensive presentation based on his studyof disaster management legislation from a selectnumber of countries and review of global bestpractices. The countries studied included SouthAfrica, Indonesia, Sri Lanka, the Philippines, St.Lucia,Thailand,Japan,Ecuador,Honduras,Siberia,Zambia, Bolivia, and Slovenia. The presentationcapturedtheuniquefeaturesofthevariousdisastermanagement Acts, identified their respectivestrengthsandgaps,andsuggestedthebestpracticesrelevanttotheIndiancontext.

1.4.9 DuringthefifthmeetingoftheTaskForceheldonAugust13,2012,itwas,inter-alia,decidedto have an interaction meeting with the thenChairman,MemberSecretary,andoneortwootherMembersoftheHPCwhichhadbeenconstitutedbytheGoIin1999.TheHPChadsubmitteditsreport inOctober2001. Itwaspossibly thefirstcomprehensive exercise reflecting on the disastermanagement system in India. The Task Forceheld its interactionmeetingonAugust 30, 2012.Shri J.C.Pant,Chairmanof theHPC,couldnotattendthemeetingduetoasuddenindisposition.However, the participation of Shri Anil Sinha,Member Secretary, and Prof. V. K. Sharmabrought forth important insights on the issues,problems and challenges of disaster managementinthe1990s,aswellasanenumerationofthekeyrecommendationsoftheHPC.TheyofferedtheircommentsandsuggestionsontheDMAct,2005.

6


1.4.10 Thus theTaskForce accomplishedwide-ranging consultations with State Governments,UTs, GoI Ministries and agencies, internationalorganisations,civilsocietymembersandacademics.Basedontheelaborateconsultationsrelatingtoareview of the Act’s provisions and an analysis oftheinstitutionalstructureproposedbyit,theTaskForcepreparedadetailedpowerpointpresentationduring its sixth meeting held on September5, 2012, at which important suggestions andrecommendations were crystallised. Subsequently,a comprehensive background paper was preparedand its findings were presented to stakeholdersat a national consultation held in New Delhi onOctober12,2012.TheTaskForcehelditsseventhmeeting on October 25, 2012, to analyse thesuggestions put forward by participants at thenational consultation and to review the progressof the draft report’s preparation. Over five moremeetings–heldonNovember16,2012;December14,2012;January15,2013;February4,2013;andFebruary 27, 2013 – the Task Force discussedvariousaspectsofthereportatlengthwithaviewto finalising it. The report was submitted to theUnionHomeMinisteronMarch8,2013.

1.4.11 Theapproachandmethodologydiscussedabovecanbesummarisedasfollows:

Approach

• Acomprehensivereviewoftheobjectives,scopeandprovisionsoftheDMAct,2005.

• An analysis of the new institutional structuresenvisagedbytheAct.

• Areviewofthedutiesandfunctionscarriedoutby the new disaster management institutions,basedonconsultations.

• Referencetolegalandinstitutionalframeworksofdisasterriskreductioninothercountries.

Methodology

• Deskreviewofkeydocuments(Acts,rulesandGovernmentOrders)

• Feedback collected through a questionnairepreparedandcirculatedforthereview.

• RegionallevelconsultationswithStates,UnionTerritoriesandotherstakeholders.

• ConsultationswithCentralMinistriesandotherorganisations, including those created undertheAct(e.g., theNDMA,theNIDMandtheNDRF).

• Consultations through the Solution ExchangenetworkoftheUNsystemandworkshopswithinternationalorganisationsandNGOs.

1.5 Structure of the Report TheReportcontainseightchapters:

• Chapter1describesthecontextandrationaleforsettinguptheTaskForce,itsTermsofReference,approachandmethodology.

Box 1.2: MeThoDology followeD by The

TAsk foRce

• Review of key documents – Acts, Rules and government orders.

• feedback collected through a detailed questionnaire.

• consultation at regional and national levels with states/UTs/other stakeholders.

• consultation with central Ministries and other organisations, including those created under the Act, e.g., the nDMA, the nec, the nIDM and the nDRf.

• consultation through the solution exchange network of the Un system as well as through workshops with international and non-governmental organisations.

7


• Chapter 2 traces the evolution of the legalframework for disaster management in India.Takingnote of recent global trends indisastermanagementlegislation, itprovidesahistoricalaccountoftheevolutionofdisastermanagementlawsinIndia.

• Chapter3incorporatesareviewofbestpracticesculled from a study of disaster managementlegislation in a select number of countries.It examines the salient features of disastermanagement laws of several countries andattemptstodrawlessonsforIndia.

• Chapter 4 examines in detail the structuresand functioning of national level institutionsenvisaged by the DM Act, 2005. It attemptsa critical analysis of the working of theseinstitutions based on the studies, review andfeedback receivedby theTaskForceduring itselaborateconsultationswithvariousstakeholders,formulating a set of recommendations andrequiredamendmentstotherelevantprovisionsoftheAct.

• Chapter5attemptsasimilaranalysisofdisastermanagement institutions at the state, districtandlocallevels.

• Chapter6containsananalysisoftheprovisionsof the Act relating to the role of Central andState Governments, preparation of disastermanagementplans,andtheprovisionsrelatingtothefinancingofdisastermanagementactivities

• Chapter 7 examines the provisions relatingto offences and penalties, and miscellaneousaspects. It discusses the various suggestions ofstakeholders,analysesimplementationissuesandalsotakesintoaccounttherecommendationsofstudies by Commissions such as the SecondAdministrative Reforms Commission andthe Law Commission, finally making somerecommendations for further improvement intherelevantprovisionsoftheAct.

• Chapter8enumeratestherecommendationsoftheTaskForce.

8

2.1 IntroductionLaws and institutions evolve over time and areinfluenced by the thoughts, ideas and events ofthetime. TheDMAct,2005,exemplifiesthistoagreatextent,foritreflectstheideasandeventsofthedecadeprecedingit–nationallyandglobally.ItwouldbebothinterestingandusefultodelveintosomeoftheimportantdevelopmentsandtrendsattheinternationalandnationallevelwhichpreparedthegroundforandacceleratedtheprocessoftheenactmentoftheAct.


• brieflydescribesrecentglobaltrendsindisastermanagement legislation and the role andrelevanceoflegislationindisasterriskreduction

SectionII:

• recounts theevolutionofdisastermanagementlegislationinIndia–afascinatingstoryofhowideas and thinking have been influenced byinternationaldevelopmentsandeventsofmajordisasters

Section i

2.2 Recent Global Trends in Disaster Management Legislation 2.2.1 Globally, a paradigm shift in theapproachtodisastermanagement,fromreliefandrehabilitationtopreventionandmitigationwithinaholisticandcomprehensiveframework,occurredin the decade of the 1990s, observed by the UN

Evolution of the Legal Framework for Disaster Management in India2

as the International Decade for Natural DisasterReduction (IDNDR). In 1994, the Yokohama Strategy and Plan of Action for a Safer World wasadopted at the World Conference on NaturalDisasters. In 1999, a United Nations GeneralAssembly Resolution adopted the InternationalStrategy for Disaster Reduction (ISDR) andcreated the Secretariat of the ISDR (UNISDR)withtheobjectiveofensuringitsimplementation.In 2003 and 2004, the UNISDR carried out areviewof theYokohamaDeclaration.This reviewformed the basis for the Hyogo Framework for Action 2005-2015: Building the Resilience of Nations and Communities to Disasters (HFA) which wasadopted by the World Conference on DisasterReductionheldin2005andsubsequentlyendorsedbytheUNGeneralAssembly.

2.2.2 All the above mentioned initiativeswere characterised by a considerable focus onlegislation, policy and institutional arrangementsas important ingredients of a holistic approachto disaster management. For example, the HFAidentifieslegislationasacriticalaspectinforgingacomprehensiveapproachtodisasterriskreduction.Itlistsoutfiveprioritiesforactionthefirstofwhichisto“ensurethatdisasterriskreductionisanationalandalocalprioritywithastronginstitutionalbasisfor implementation”. It enumerates eight keyactivitiestofulfillthispriority.Onesuchactivityis:“Adopt, or modify where necessary, legislation tosupportdisasterriskreduction,includingregulationsandmechanismsthatencouragecompliance,andtopromote incentives for undertaking risk reductionandmitigationactivities.”

9

Evolution of the Legal Framework for Disaster Management in India

2.2.3 The Global Assessment Report on Disaster Risk Reduction, 2011, of the ISDR indicatesthat a majority of the existing legislations ondisaster management were drafted or reformedfromthemid-1990sonwards.InotherwordstheUNIDNDR (1990-1999) and the subsequentISDR(from2000onwards)playedanimportantrole in accelerating the process of enactment ofdisaster management legislations. According totheabovereport,by2011,48countriesreportedsubstantial achievements in developing anational policy and legislation on disastermanagement.

2.2.4 An interesting aspect brought out byUNDP’svariousstudiesisthatthedevelopmentofdisasterriskreductionlegislationisoftentriggeredand sustained by factors such as major disasters,political shifts, the engagement of particularlydynamic individuals, and well-educated andparticipating communities1. In South Africa,

1 Llosa, Silvia and Zodrow, Irina, 2011, Global Assessment Report on Disaster Risk Reduction, 2011: Disaster risk reduction legislation as a basis for effective adoption,ISDR,Geneva.

legislative efforts were galvanised by devastatingfloods and droughts, and the country’s highmotivation for change in thepost-Apartheidera.The2004IndianOceantsunamihadatriggeringeffect on the development of national legislationinaffectedcountriessuchasIndonesia. InIndia,the process of enacting a disaster managementlawatthenationallevel,whichhadbeeninitiatedsubsequenttotheHighPowerCommittee(HPC)report, and particularly after the 2001 Gujaratearthquake,wasacceleratedintheaftermathofthe2004IndianOceantsunami.

2.2.5 The role of a legal framework in disastermanagementhasbeenwell recognised in the lasttwo decades by policy makers, practitioners andanalysts at the national and international level.ConsiderthefollowingstatementfromtheGlobal Assessment Report on Disaster Risk Reduction, 2011,citingfromvarioussources:

‘To implement such actions effectively, legislation is necessary. A legal framework establishes “legal authority for programs and organizations that relate to hazards, risk and risk management (Mattingly, 2002). These laws may dictate – or encourage – policies, practices, processes, the assignment of authorities and responsibilities to individuals and/or institutions, and the creation of institutions or mechanisms for coordination or collaborative action among institutions”. Britton (2006) asserts that “without a comprehensive and binding legal directive that obliges actors and agencies to take action, the natural inertia of bureaucracies means that non-specified essential tasks are unlikely to be undertaken”. Law can be used to provide penalties and incentives by enforcing standards, to empower existing agencies or establish new bodies with new responsibilities, and to assign budget lines

Box 2.1: RecenT globAl TRenDs

• Paradigm shift from relief and rehabilitation to prevention and mitigation, defined by a holistic approach.

• The Yokohama Strategy and Plan of Action for a Safer World, 1994, and the Hyogo Framework for Action, 2005 -2015: Building the Resilience of Nations and Communities to Disasters (hfA), 2005.

• focus on legislation to support disaster risk reduction.

• According to IsDR’s Global Assessment Report on Disaster Risk Reduction, 2011, 48 countries reported substantial achievements in developing a national policy and legislation on disaster management.

10


(Pelling and Holloway, 2006). In short, legislation enables and promotes sustainable engagement, helps to avoid disjointed action at various levels and provides recourse for society when things go wrong’.2

2.2.6 Therole,relevanceandvalueoflegislation,isbroughtoutsuccinctlyinapaper3entitled“Policy,LegalandInstitutionalArrangements”byShirleyMattinglywhocitesthefollowingaspectsfromtheliteratureonthesubject:

• Itprovides a formalbasis fordisaster counter-measures generally, formally supporting plans,organizational arrangements, preparednessmeasures, response actions, and recovery andreconstructionprogrammes.

• It allocates major responsibilities in legalform, which helps to secure their properimplementation.

• Legislation can be made to have a uniformnational effect, thus ensuring that all levels ofthe national counter-disaster structure receivethefullbenefitofitssupport.

• It does not need to be complicated to beeffective.Itcanprovidecommonsensebackingforcommonsenserequirements.

• Legislation can provide a wide measure ofprotection for governments, organizations, andindividualswhomaybeaffectedbyadisaster.

• Disasterlegislationcanaugmentandsupplementother legislations related to environmentprotection,economicdevelopment,etc.

OtherkeyattributesofeffectivearrangementsfordisastermanagementlistedbyMattinglyinclude:

2lbid3 Mattingly, Shirley, 2002, “Policy, legal and institutionalarrangements”, Proceedings, Regional Workshop on BestPracticesinDisasterMitigation,September24-26,2002,Bali,pp.19-36.

• clear mandate and roles, including line ofcommand and coordination, within politicalunits

• integrated and comprehensive and hazardspecific

• incorporatedinthelawoftheland/constitution

• sensitivitytoindigenouscustomarylaw

• implementingrulesandregulations

• appropriate sanctions and enforcementmechanisms

• recognitionofcollaterallaw,whichmayincludemitigationandotheraspectsofDMcomponents

• explicitprovisionforfinancialsupport

• sub-nationallegalinstrumentssensitivetolocalcontent

• integration into national developmentframeworkandplan

• community participation in the planning,implementing,monitoringandevaluation

2.2.7 Laws and regulations provide the basisfor promoting and enforcing certain rights andobligations of groups and individuals. In thecontext of governance of disaster management,laws set objectives and standards, and assignresponsibilitiestovariousstakeholders.Regulationsandcodesdescribespecificnormsandprocedures.Laws,regulationsandcodesalsocreatestructuresofincentivesanddisincentivesthroughprovisionsof penalties, taxes, rewards and punishments.Consequently, inmostcountries,thereareseverallaws, regulations and codes which, though theyrelatetosectoralaspects, impingeondisasterriskreductionactivities.Howeverthatisnotadequate.There is aneed for abasic legislationondisastermanagement that is comprehensive and cutsacrosssectors.Thisapproachhasbeenemphasisedgloballysincethe1990s.

11


2.2.8 Institutional arrangements for disastermanagementandlegalframeworksareinterlinked.Laws and regulations provide an enablingframework to theorganisational structureand itsparticipants.Itisforthisreasonthatlawsprovidefor organisational structures at different levels aswellastheroles,mandatesandresponsibilitiesofvarious institutions and individuals. Further, anorganisationalstructurewithoutalegalfoundationwould be less effective. In the larger context,however, theoverall systemofgovernance,whichincludes policies, institutions, laws and values,influencestherelativestrengthsandachievementsof the agencies and individuals undertaking theactivities of disaster management. Consequently,a review of law relating to disaster managementwould invariably involve an analysis of theorganisational structures at different levels, theirroles, functions and appropriateness for the tasksassignedor tobeassigned.This iswhat theTaskForce has kept in view while reviewing the DMAct,2005.

Section ii

2.3 Evolution of Disaster Management Legislation in India 2.3.1 Historically,measurestoaddressproblemsoffamineandtosomeextentfloodshavebeenthefocusofdisastermanagementinIndia.Someformoflegalframeworkwasintroducedduringthelate1870swhenthefirstFamineCommissionsuggestedtheformulationofFamineCodes.Italsosuggestedthe establishment of agriculture departments inprovinces with a view to improving agriculturalproduction and taking preparedness measuresformeetingsituationsoffailureofrains.The19thcenturywitnessedthesettingupofseveralFamineCommissions which developed Famine Codes.Even after Independence, disaster managementeffortswerelimitedtofightingnaturalcalamities,particularlyseveredroughtsresultinginfaminesorfamine-likeconditions.Insomeareasmeasurestomitigatetheeffectsofexcessrainsandfloodsweretaken.StateshadtheirReliefManualscontainingnormsandguidelines forsuchreliefmeasures.Inthe1970s,acomprehensivedroughtmanagementprogramme focusing on mitigation was taken upthrough the Drought Prone Areas Programme(DPAP).

2.3.2. After Independence, a Scarcity ReliefDivisionwassetupintheMinistryofAgriculture,GoI, to deal with the problem of food scarcity.Subsequently, it was assigned work relating tovarious natural calamities. At a later stage, itsnomenclaturewaschangedtotheNaturalDisasterManagement(NDM)Division.ThustheMinistryof Agriculture became the nodal Ministry fordisastermanagementatthenationallevel.In1995,the National Centre for Disaster Management(NCDM) was established within the IndianInstitute of Public Administration (IIPA). TheNDM Division and the NCDM were expected

Box 2.2: Role of lAws AnD RegUlATIons

• laws and regulations provide a basis for promoting and enforcing certain rights and obligations of groups and individuals.

• Regulations and codes describe specific norms and procedures.

• laws, regulations and codes also create structures of incentives and disincentives.

• Though most countries have several laws, regulations and codes, there is a need for a basic legislation for disaster management that is comprehensive, cutting across sectors.

• legal frameworks and institutional arrangements for disaster management are interlinked. A study of legislation involves an analysis of the relevant institutional structure as well.

12


to carry out disaster reduction related activities:human resources development, research, training,buildingadatabaseandthecoordinationofvariousprogrammesundertakenbydifferentorganisations.

2.3.3 Asmentionedearlier,the1990swereatimeof important developments at the internationallevel, with the declaration of the IDNDR bythe UN followed by the Yokohama declaration.National governmentswere expected to focus onpreventionandmitigationaspects,demonstratingaholisticapproachtodisastermanagement.Asaresultof these initiatives, andalsobecauseof theexperiences of a number of major disasters (e.g.,the1993Laturearthquake),thesubjectofdisastermanagement received more urgent attentionin India. The GoI constituted a High PoweredCommittee(HPC)ondisastermanagementunderthe chairmanship of Shri J.C. Pant in August1999.TheHPC’smandatewastoreviewexistingarrangements for preparedness and mitigation ofnatural disasters and recommend measures forstrengthening the organisational structure. TheHPCwasalsoaskedtoformulateacomprehensivemodelplanfornaturaldisastermanagementatthenational, state and district levels. Subsequently,man-made disasters were also brought withinits scope. TheHPCsubmitted itsfinal report inOctober2001.

2.3.4 The HPC undertook a series ofconsultations with a number of governmentaland non-governmental entities, national andinternational agencies, and media organisations.It sponsored several studiesonvarious aspectsofdisastersbyexperts.ThefinalreportoftheHPCdisplayedavisiontoworktowardsadisaster–freeIndia by adhering to a culture of preparedness,quickresponse,strategicthinkingandprevention.The HPC’s recommendations spanned theConstitutionalandlegalframework,organisationalstructuresandinstitutionalmechanismskeepinginviewtheoveralldisastermanagementsystemofthe

country. After the2001Gujarat earthquake, theGoIconstitutedanAll-PartyNationalCommittee,headed by the Prime Minister. The HPC wasconverted intoaWorkingGroupoftheNationalCommittee. The Working Group submitted itsreport to the Prime Minister in June 2003. TheWorking Group, inter-alia, recommended aNationalDisasterManagementPolicyforadoptionbytheGoI.

2.3.5 TheGoIsetuptheSecondAdministrativeReforms Commission (ARC) under thechairmanship of Shri Veerappa Moily in August2005toprepareadetailedblueprintforrevampingthe public administration system. The ARCsubmitted its third report – Crisis Management: From Despair to Hope – in September 2006.Thereportdiscussedatlengthvariousaspectsofdisastermanagement,includingthelegalandinstitutionalframework. Further, it analysed and commentedupon important recommendations of the HPCandalsoontheprovisionsoftheDMAct,2005.

2.4 Constitutional Provisions2.4.1 BoththeHPCandtheSecondARChaveexaminedthenecessityofaspecificentryrelatingto disaster management in the Constitution ofIndia.IntheSeventhScheduleoftheConstitution,subjectsthatcomeunderthelegislativecompetenceof the Union and state governments areenumeratedintheUnionListandtheStateList,respectively. Subjects on which both the Unionandstategovernmentshaveconcurrentlegislativejurisdictionsare included in theConcurrentList.Disastermanagementisnotmentionedspecificallyas a subject in any of the three lists. Accordingto the HPC, the only two entries in the StateList that are somewhat related to the subject ofdisaster management are entry 14 – which dealswithagriculture,includingprotectionagainstpestsand plant diseases – and entry 17, which dealswith water, including water supply, drainage and

13


embankments.TheHPCstronglyfeltthatthiswasgrosslyinadequate,andthatdisastermanagementneededaspecificentryintheSeventhScheduleoftheConstitutionofIndia.

2.4.2 As mentioned in theThird report of theSecondARC(page34),a subjectnot specificallymentionedinanyofthethreelistsoftheSeventhSchedule of the Constitution comes under theResiduary Power of the Union under entry 97of the Union List: “According to one view,Parliament therefore has the competence tolegislateonthesubject.However,bypracticeandconventiontheprimaryresponsibilityformanagingdisastersrestswiththeStateGovernments.”Stategovernments are provided financial assistance bythe Union Government for meeting expenditureonspecifiednaturalcalamitiesonthebasisoftherecommendationsoftheFinanceCommissions.

2.4.3 The Parliament enacted the DM Act,2005, by invoking entry 23, namely, “SocialSecurity and Social Insurance; Employment andUnemployment” in the Concurrent List of theConstitutionofIndia.ThisalsohastheadvantagethatthatStatescanhavetheirownlegislationondisastermanagementaswell.

2.4.4 AccordingtotheSecondARC,allaspectsofdisastermanagement,includingpreparedness,earlywarning systems, rescue, relief and rehabilitation,are not covered by entry 23 of the ConcurrentList.The term‘disaster’ includesnotonlynaturalcalamities but also industrial disasters, healthrelated disasters (epidemics) and disasters causedbyactsofterrorism.Therearevariousentriesinthethreelistswhichdealwithsomeortheotheraspectof disaster management. For example, PublicOrderandPublicHealthareincludedintheStateList.Entries14and17oftheStateListdealwithagriculture and water, respectively. EnvironmentandsocialsecurityareincludedintheConcurrentList. Atomicenergyandtherailwaysarepartof

theUnionList.Further,consequentuponthe73rdand74thAmendmentstotheConstitution,allcivicpowers have been assigned to local bodies. Allthesearerelevanttodisastermanagement.

2.4.5 Disaster management requires a multi-disciplinary and multi-agency approach. Itrequires coordination among Union, state andlocal governments on the one hand and severalgovernment departments and agencies on theother. In other words, vertical and horizontallinkages are essential. In order to achieveconvergence and coherence among departmentsandagencies,andbecauseoftheholisticnatureofdisaster management which necessitates cuttingacrosssectors,thereisaneedforabroadlyuniforminstitutional framework. Keeping these aspectsinview theSecondARC, like theHPCand theNationalCommission toReviewtheWorkingofthe Constitution (NCRCW), has recommendedthatthesubjectofdisastermanagementbeincludedin the Concurrent List of the Constitution. Itsrecommendationwasasfollows:

A new entry, “Management of Disasters andEmergencies, natural or man-made,” may beincluded in List III (Concurrent List) of theSeventhScheduleoftheConstitution.4

2.5 Legal Framework 2.5.1 Although India did not have acomprehensive disaster management law for thecountryuntil2005,andtherewasnosuchlawevenat thestate levelbefore theGujaratActof2003,thesewereprecededbysomelegislationsaddressingspecific aspects in a limited way. Such laws wereenactedevenafter2005 toaddress specific issuesandchallenges.

4SecondAdministrativeReformsCommission,GovernmentofInida,2006,Crisis Management: From Despair to Hope,NewDelhi,p.35

14


2.5.1.1Triggered by the experience of the1984 Bhopal gas disaster, the Environment(Protection) Act, 1986, was passed to ensurethat developmental and industrial activities didnotdamage theenvironmentor causepollution.TheActprohibitsapersonoperatinganindustry,operationorprocessfromdischargingoremittingany environmental pollutants in excess of thestandards prescribed for this purposes. TheHazardousWastes(ManagementandHandling)Rules,1989,andtheHazardousChemicalRules,1989,wereframedundertheAct.However,itwasonly in 1996 that the Ministry of Environmentand Forests published the rules on “EmergencyPlanning, Preparedness, and Response forChemicalAccidents”.

2.5.1.2ThePublicLiabilityInsuranceAct,1991,makesittheresponsibilityoftheownerofaunitproducing hazardous substance as defined in theEnvironment (Protection) Act, 1986, to provideimmediate relief where death or injury to anypersonordamagetoanypropertyresultsfromanyaccidenttotheextentindicatedintheScheduletotheAct.Theownerisrequiredtohaveoneortwoinsurancepoliciessothattheliabilityforprovidingreliefiscoveredbythepolicy.

2.5.1.3 ThereareotherActsandrulesaddressingdisaster mitigation related issues. Some of those,includingtheonesmentionedearlier,arelistedintheboxbelow:

2.5.1.4There are anumberof laws and codes atthestatelevelonsubjectsrelatingtofireprevention

Box 2.3: AcTs AnD RUles ADDRessIng DIsAsTeR RIsk ReDUcTIon IssUes In InDIA

Acts Rules

• The Indian forest Act, 1927

• The factories Act, 1948

• civil Defence Act, 1968

• water (Prevention and control of Pollution ) Act, 1974

• forest (conservation) Act, 1980

• Air (Prevention and control of Pollution) Act, 1981

• environment (Protection) Act, 1986

• factories Amendment Act, 1987

• The Public liability Insurance Act, 1991

• The biological Diversity Act, 2002

• scheduled Tribes and other Traditional forest Dwellers (Recognition of forest Rights) Act, 2006

• The cultural heritage conservation bill, 2010 (draft)

• Mines and Minerals (Development and Regulation) Act, 2010

• The national green Tribunal Act, 2010

• Manufacture, storage and Import of hazardous chemicals Rules, 1989

• Rules for the Manufacture, Use, Import, export and storage of hazardous Micro-organisms, genetically engineered organisms or cells, 1989.

• The chemical Accidents (emergency Planning, Preparedness, and Response) Rules, 1996

• Dumping and disposal of fly ash discharged from coal or lignite based thermal power plants on land Rules, 1999

• bio-medical waste (Management and handling) Rules,1998

• The hazardous wastes (Management and handling) Rules,1989

• The Municipal solid waste (Management and handling) Rules, 2000

• hazardous waste (Management, handling and Trans-boundary Movement) Rules, 2008

• wetlands (conservation and Management) Rules, 2010

• guidelines for diversion of forest lands for non-forest purpose under the forest (conservation) , Act, 1980

15


andbuildingconstruction,amongthemtheDelhiFireServiceActof2007,andtheDelhiBuildingBye-Laws. The States and UTs have their ownlaws.

2.5.2 TheNCDMengagedProf.S.S.Singh tostudythelegalframeworkofdisastermanagementinselectcountriesandtoproposeadraftDisasterManagement Bill for India. Prof. Singh studiedthe laws of Australia, Britain, Canada, CookIslands,Denmark,Japan,TheNetherlands,PapuaNewGuinea,TrinidadandTobago,andtheUnitedStates of America. On the basis of his study, inJune2000,Prof.Singhproposed adraftDisasterManagement Bill for India with the followingsalientfeatures:

• A National Council chaired by the PrimeMinister, with Ministers of the relevantMinistries of GoI; the Deputy Chairman,Planning Commission; Chief Ministers (byrotation) as Members; and the Secretary,MinistryofAgriculture,asMemberSecretary.

• ANationalAuthorityonDisasterManagement– NDMA – with the Agriculture Minister asChairmanofitsExecutiveCommitteeandafeweminentpersonsandSecretariesoftherelevantline departments as Members. A secretariatwithfull-timefunctionarieswasalsoproposed.

• AStateCouncilandSDMAatthestate level;District Council and DDMA at the districtlevel,respectively.

2.5.3 The HPC prepared a National CalamityManagementAct in2003 thedraft ofwhichwascirculatedtoallStatesandtherelevantMinistriesoftheGoIfortheircomments.TheproposedActaimedat ensuring efficient and effective management ofnatural and other calamities by achieving greatercoordination and responsiveness for the purposeof prevention and mitigation of disasters. Theproposed National Calamity Management Act

envisaged the formation of a National Centre forCalamity Management (NCCM) and also dwelton the duties and functions of the Central ReliefCommissioner, State Relief Commissioners andDistrict Relief Commissioners. It also providedforaNationalCalamityContingencyFund.Therewere provisions related to offences and penalties,too. Though not incorporated in the proposedAct, the HPC recommended the creation of aseparateMinistryofDisasterManagement.Italsorecommended a Cabinet Committee on DisasterManagement and aNationalCouncil onDisasterManagementwithallpartiesbeingrepresentedinit.

2.5.4 The HPC also prepared a Model StateDisasterManagementActwhichcouldbeadoptedbytheStatestopreparetheirlegislationondisastermanagement. The Model Act identified theprincipalauthoritiesfordisastermanagement–thestategovernment,StandingTechnicalCommittee,StateReliefCommissionerandDistrictMagistrate– and outlined their powers and responsibilities,dutiesandfunctions.Italsoenumeratedthedutiesof local bodies and other agencies such as StatePolice, Home Guard, Civil Defence, and PublicEnterprises. It specifically mentioned the roleof insurance as amitigationmeasure.TheModelActalsocontainedprovisionsregardingliabilities,offences and penalties. In both the draft Acts –the National Calamity Management Act andthe State Disaster Management Act – there wasanemphasisoncapacitybuildingand trainingofvarious stakeholders. Among others the HPCrecommended the setting up of the NIDM forcapacity building, and the creation of a separatedepartment to deal with disaster management intheGoI.

2.5.5 Asmentionedearlier,afterthe2001Gujaratearthquake,anAll-PartyNationalCommitteeonDisaster Management under the chairpersonshipof the Prime Minister of India was constitutedinFebruary2001.TheHPCwasconvertedintoa

16


Working Group under the overall supervision oftheVice-ChairpersonoftheNationalCommitteeon Disaster Management. The NationalCommitteeendorsedHPC’srecommendationsforthe enactment of a central legislationondisastermanagement.However,atthatpointoftime,theGoItookaviewthatinsteadofacentrallegislation,theStatesbeadvisedtoenacttheirrespectivestatelegislations. In a communication dated July 29,2003 which was sent by the then Deputy PrimeMinister to the Chief Ministers on the variousmeasures tobe taken, itwas, inter alia, suggestedthatthestategovernmentscouldenacttheirownState Disaster Management Act. However, inthe aftermath of the 2004 Asian tsunami, it wasdecidedthatacentrallawondisastermanagementbeenactedandaNationalDisasterManagementAuthoritybeconstituted.

2.5.6 EvenastheformulationandenactmentofaCentrallawondisastermanagementwasunderconsiderationoftheGoI,someStatespassedtheirownlaws:TheGujaratStateDisasterManagementAct, 2003; the Bihar Disaster Management Act,2004;theUttarPradeshDisasterManagementAct,2005; and the Uttaranchal Disaster Mitigation,Management and Prevention Act, 2005. TheBihar Act is based on the model recommendedby the HPC. The Uttaranchal Act envisagesthe establishment of a Disaster Mitigation andManagementCentrewhichwouldfocusondisastermanagement, creating awareness, exchange ofinformation, establishing and operationalising anadvancewarningsystemintheregion.TheGujaratAct,whichwas thefirst suchAct in thecountry,is very comprehensive. ThedefinitionofdisasteriswiderthaninthemodelproposedbytheHPC.TheUttarPradeshActderivesextensivelyfromtheGujaratAct.

2.5.7 Thus, the national level legislation wastheculminationofaprocesswhichstartedalmosta decade earlier. Global initiatives, internationalinteractions and national experience servedas catalysts for moving towards creating alegal framework for disaster management. The2001 Gujarat earthquake generated a sense ofurgency, resulting in the Gujarat State DisasterManagementAct,2003.Theprocessatthenationallevelwasinfluencedbymajordisasterssuchasthe1999Odishasupercycloneandthe2001Gujaratearthquake.The2004Asiantsunamiprovidedthefinal impetus for the enactment of the DM Act,2005,onDecember23,2005.

Box 2.4: A TIMelIne of The evolUTIon of

DIsAsTeR MAnAgeMenT lAws In InDIA

• famine codes were developed in the 19th century.

• Relief manuals were prepared by states before and after Independence.

• The passage of the environment (Protection) Act, 1986, and various rules under the Act.

• The passage of the Public liability Insurance Act, 1991.

• The suggestion of a national calamity Management Act for the country in the 2001 report of the hPc set up by the goI. The hPc also prepared a Model state Disaster Management Act for the states.

• The gujarat state Disaster Management Act, 2003; the bihar Disaster Management Act, 2004; the Uttar Pradesh Disaster Management Act, 2005; and the Uttaranchal Disaster Management and Prevention Act, 2005.

• The Disaster Management Act, 2005.

17

Best Practices in Disaster Management Legislation: A Global Review

33.1 Introduction3.1.1 Disasterscannotbelookedatinisolation,especiallyinaglobalisedworld.Inourtimesneitherdisastersnormitigationeffortsarelocalinthestrictsenseoftheword.Henceanyattempttoformulatealegalframeworkshouldkeepinmindthelarger,international context. This makes it necessaryto review best practices in disaster managementthroughlegislationinothercountries.

3.1.2 Many countries have enacted disastermanagement laws in recent years and withinthe last decade.The changing nature and impactof disasters have led to a revision of the legalframework in many countries. Some of themsuch as the Philippines, South Africa and theAustralianStateofQueensland,haverevisedtheirActs as well. The legal framework for disastermanagementinanycountryisgenerallyshapedbyitspastexperience,riskcontexts,politicalandlegalcontexts,thelessonslearntandadjustmentsmadevis-a-visexistingresources,prevailinginstitutionalarrangements as well as professional skills. Evenso, countries can learn from the best practices ofothers.


• describes important aspects of disastermanagement legislationsof a selectnumberofcountriesthatarerelevanttotheIndiancontext,withaviewtodrawinglessonsfromthem

Section2ofthischapter:

• describeshighlightsofthedisastermanagementlegislationsofdifferentcountries

• discussessomeofthecommonandincreasinglysignificantfocusareasamongthelawsreviewed

Section i

3.2 Review of Legislations of Select Countries from the Developed and Developing World3.2.1 Many countries in the world haveenacted disaster management laws to addresstheirparticularvulnerabilitiestodisasters.Whatis instructive is to see how the scope of suchlegislation in any country is either extended orlimited by its constitutional, political, economicand sociological contexts. Keeping in mind thatacomparativestudyoflegislationsfromdifferentcountrieswouldprovidearangeofscenariosfromwhichtodrawlessons,theTaskForceexaminedthefollowinglaws:

• StateCounter-DisasterOrganizationAct,1975,ofQueensland

• DisasterManagementAct2003ofQueensland

• Disaster Management and other LegislationAmendmentActof2010ofQueensland

• SouthAfrica–DisasterManagementAct,2002

• South Africa- National Disaster ManagementFramework,2005

• SriLankaDisasterManagementActNo.13of2005

18


• SaintLucia–DisasterManagementAct,2006

• Thailand Disaster Prevention and MitigationAct,B.E2550(2007)

• Law of The Republic of Indonesia No 24 of2007ConcerningDisasterManagement

• Philippine Disaster Risk Management Act of2009

• Philippine Disaster Risk Reduction andManagementActof2010

• Japan Disaster Counter Measures Basic Act,1997

• Robert T. Stafford Disaster Relief andEmergency Assistance Act, as Amended, andRelatedAuthorities,FEMA592,June2007

• The Post-Katrina Emergency ManagementReformActof2006

• Civil Defence Emergency Management Act,2002ofNewZealand

• TheDisasterManagementAct,2002ofAntiguaandBarbuda

3.2.2 In addition, the Task Force studied aconsiderable number of analytical commentariesandreportsonthelegalframeworkofalargepoolofcountries,includingaUNDPreview,werealsostudied.WhilestudyingtheActs,twoaspectswereexamined:

• WhatiscommontoalltheseActs?

• WhatarethepointsofdifferenceintheseActs?

Simply put, the common features emphasisethe essential aspects of the framework neededfor managing disasters, and the different aspectshighlightthediversityofthecontextsinwhichthebasictenetsareapplied.

3.2.3 Queensland, Australia: Exemplary Response to Need for Disaster Management Legislation

3.2.3.1 Queenslandprovidesanexcellentexampleof a State which was not only quick to respondto the need for a legal framework for disastermanagementbutalsopromptinmakingnecessarysupplementarylawsandamendmentsasandwhenrequired. Queensland enacted the State CounterDisaster Organization Act in 1975. A review ofthisActresultedintheenactmentoftheDisasterManagement Act, 2003. In 2010, Queenslandmade some minor amendments to the 2003 ActandenactedtheDisasterManagementandOtherLegislation Amendment Act. The scope of theframework covers all four phases of a disaster:Prevention,mitigation,responseandrecovery.

3.2.3.2 The key feature of Queensland’s legalframework is that local governments have beenmadeprimarilyresponsibleformanagingdisastersintheirrespectiveareas.ThenodaldepartmentforthepurposeofdisastermanagementistheDepartmentof Emergency Services. The Act provides for athree-tiered structure for Disaster ManagementGroupsatthestate,districtandlocalgovernmentlevels.ThestatelevelGroup,whichischairedbytheCEO of the Department of Emergency Serviceswith clearly articulated powers and functions,draws its members from departments includingDefence, Meteorology, and organisations such asthe Red Cross. Though the district Group has asimilar membership structure, it also provides forthe representationof localgovernments. TheActalso provides for two or more local governmentscoming together and forming United DisasterGroups.TheroleoftheStateDisasterGroupsveersmoretowardspolicyformulationandmaintainingan advisory and monitoring role rather than thatof execution and implementation. The functionsrelated to implementation are entrusted to thedistrictandlocallevelGroups.

19


3.2.3.3 TheActalsoprovides for thedeclarationofadisastersituationatthedistrictandstatelevelbytheDistrictDisasterCoordinatorandtheStateDisasterCoordinator (for theentireStateor anypartthereof ),respectively.

3.2.3.4 TheActprovidesforvolunteermembershipwith the State Emergency Services to performsearch and rescue and other disaster relatedactivities, andalsoprovides for theestablishmentofemergencyserviceunitsconsistingofvolunteerstoperformfirstaidandfirerelatedservicesinruralandremoteareas.

3.2.4 South Africa: The Disaster Management Act, 2002

3.2.4.1 TheSouthAfricanlawhasbeenappreciatedworldwideasoneofthebestnational legislationsto promote disaster risk reduction. An elaborateconsultative process was adopted in drafting thislaw. A significant feature of this process was thepolitical commitment and support generated forlegislativereforms.Toachievethegoalofmakingasound,implementablelaw,theConstitutionwasamended to make it comply with a three-tieredstructureofdisastermanagement at thenational,provincial and local level. By an amendment inPartAofSchedule4oftheConstitution,disastermanagementhasbeenmadeaconcurrentsubjectbyprovidingaroleforbothnationalandprovisional

governments.Thislawisimportantforthepurposeofour studybecauseofanalmost similar, federalpolity andadministrative structureof the central,state and local government in India. Like India,SouthAfrica, too, isprone to severalnatural andman-made disasters. It is noteworthy that thisAct is not applicable to emergencies coveredundertheEmergencyAct,1997(suchasathreatto the lifeof thenationbywar, invasion,generalinsurrection,disorder,naturaldisaster,oranyotherpublic emergency). Thus, South Africa makes adistinctionbetweendisastersandemergenciesandhas accordingly provided separate legislations todealwiththem.

3.2.4.2 The South African Act provides for amulti-layered institutional arrangement to meettherequirementsofeffectivedisastermanagementat the national, regional and local levels. Atthe highest level is the IntergovernmentalCommitteeonDisasterManagement(ICDM).Itcomprises Cabinet Members involved in disastermanagement,membersoftheExecutiveCouncilofeachprovinceandmembersofmunicipalcouncilsselectedbytheSouthAfricanLocalGovernmentAssociation.The ICDM is chaired by a CabinetMemberdesignatedbythePresident.TheICDMisaccountabletotheCabinetforthefollowing:

• Ensuring that appropriate mechanisms andinstitutional arrangements are in place to giveeffecttotheprinciplesofcooperativegovernance.

• Coordinating disaster management byestablishingjointstandardsofpracticebetweenthe spheres of government, as well as betweenaparticular sphereofgovernmentandrelevantroleplayers.

3.2.4.3 The ICDM is also responsible forestablishing a national framework to ensurea uniform approach to disaster managementby all organs of state. The Act provides for the

Box 3.1: QUeenslAnD, AUsTRAlIA

• local governments have been made primarily responsible for managing disasters in their respective areas.

• The Act provides for the declaration of a disaster situation at the district as well as state level.

• The Act also provides for volunteer membership with the state emergency services to perform search and rescue and other disaster related activities.

20


establishmentofaNationalDisasterManagementAdvisoryForum(NDMAF).Thisforumprovidesfor adequate representation of non-state actors,amongothers,indisastermanagement.

3.2.4.4 The Act provides for the establishmentofDisasterManagementCentresat thenational,regional and local levels. The National DisasterManagement Centre (NCDM) is the principalfunctional unit at the national level, as are theCentres at the provincial and municipal levels.The municipal administration is the mainagency responsible for disaster mitigation andmanagement.Thecentralgovernmenthasaspecialfundtofinancemitigationprojectsreceiveddirectlyfromthemunicipalbodies.ATechnicalAdvisoryCommittee comprising nationally recognisedspecialists provides advice on hazards, risks andvulnerabilities.

3.2.4.5 Theparticipationofvolunteersindisastermanagementisencouragedthroughthecreationof

volunteerunitsandrecruitmentthroughindividualparticipation. In the aftermath of a disaster,spontaneous participation of volunteers, too, isallowed. The Act also lays down the modalitiesof receiving and giving international aid in aninterconnectedworld.

3.2.4.6 The Act extensively deals with riskassessment and monitoring. Updating riskassessments have been made mandatory, with anupperlimitof20yearsforcertaintypesofdisaster.Followinganassessment,prioritiesneedtobesetandspecificprojectsidentifiedforpreventionandmitigation.TheActspellsouttheprioritysectorsandtheorderofpriorities.

3.2.4.7 TheActprovidesfortheclassificationofadisasteranditsdeclaration.ThepowertodeterminethelevelofadisasteranditsdeclarationisvestedintheNationalDisasterManagementCentre.Thebasiccriteriafordeclarationofnational,provincialand local level disasters have been laid out. Thenatureoftheadministrativeunitaffectedandtheabilitytocopeusingresourceswithintheaffectedunitarethemaincriteriafordecidingthelevelofadisaster.

3.2.4.8 Public awareness, education and researchhave been given adequate thrust in the Act andthe role of the media in disaster mitigation andmanagement, too, has been clearly spelt out.TheActhasaspecialprovisionforaccreditingdisastermanagementandassociatedprofessions.

3.2.4.9 The Disaster Management Act of SouthAfricahasmadeprovisionsformultiplecommitteesandforumstoensuredemocraticdecisionmakinginvolvingthethree levelsofgovernmentandalsotoensurehorizontalandverticalintegrationofthevariousorgansofgovernmentinvolvedindisastermanagement.Theresponsibilitiesofthethreetiersofgovernmentarealsowelllaidout,basedonthelevelsofdisasters.

Box 3.2: soUTh AfRIcA: DIsAsTeR

MAnAgeMenT AcT, 2002

• Disaster management has been made a concurrent subject by providing a role for both national and provincial governments.

• The role of volunteers has been acknowledged and provisions have been made to channelise their participation.

• Provision for disaster classification and declaration in the aftermath of a disaster.

• The Act extensively deals with risk assessment monitoring and also makes it mandatory to update risks pertaining to various kinds of disasters.

• Provides adequate thrust to creating public awareness, education and research.

• ensures democratic decision-making through multiple committees and forums by horizontal and vertical integration of various organs of government dealing with disaster management.

21


3.2.5 Sri Lanka: The Disaster Management Act, 2006

3.2.5.1 TheSriLankanlegislationwasenactedintheaftermathofthe2004IndianOceantsunami.The National Council for Disaster Management(NCDM) headed by the President is the apexbodyfordisastermanagement.ThePrimeMinisteristheVice-Chairpersonofthebody.KeyCabinetMinistersofthenationalgovernmentdealingwithdisastersaremembersoftheCouncil.ThisAct istrulydemocraticinthesensethattheLeaderoftheOppositionandfivemembersfromtheoppositionparty nominated by the Speaker in consultationwiththeLeaderoftheOppositionalsofindplaceasmembersintheCouncil.

3.2.5.2 The formulation of disaster managementpolicyandplanshasbeenentrustedtotheCouncilinaccordancewiththeframeworkprovidedunderlaw. The main emphasis is on protection of thecommunity and the environment as well as themaintenance and development of the disasteraffected area. The appointment of TechnicalAdvisoryCommitteeshasbeenlefttotheCouncil.The power to declare a disaster has been givento the President, with or without the advice ofCouncil.

3.2.5.3 ThePresidentonhisownorontheadviceoftheCouncilcanissueaproclamationdeclaringanyareaortheentirecountryasadisasteraffectedzone. Such a proclamation needs to be placedbeforetheHouseoftheParliamentforapprovalat

itsfirstsittingafterthedeclarationofadisaster.

3.2.6 St. Lucia: The Disaster Management Act, 2006

3.2.6.1 The institutional set-up for disastermanagement in St. Lucia consists of a NationalEmergencyManagementOrganisation (NEMO)which looks after the implementation aspects ofdisaster management functions and a NationalEmergency Management Advisory Committeewhich provides policy inputs and advice. TheDirector of NEMO also acts as the ex-officioSecretary to the Advisory Committee, thusproviding an interface between the two. TheDirector, NEMO, has been vested with a widerangeofpowersincludingthepowertoreviewanyprogrammeofthegovernmentimplementedbyanyministryinthelightoftheDisasterManagementAct.TheDirectorofNEMOisalsoempoweredtoestablish other committees and sub-committeesfor particular activities in consultation with theAdvisory Committee. The post of permanentliaisonofficershasbeencreatedineachdepartmenttoliaiseandcoordinatewithNEMO.

3.2.6.2 Shelters and shelter management havebeendealtwithindetail intheAct.Theministerresponsible for disaster management issues the

Box 3.4: sT. lUcIA: DIsAsTeR MAnAgeMenT

AcT, 2006

• Risk reduction of the built environment is emphasised by making it mandatory for owners to undertake remedial action, based on the certificates issued by the hazard inspector, with the use of personal funds or with neMo’s assistance.

• creation of the post of a permanent liaison officer in each department to liaise and coordinate with neMo.

• Provision for a system for registering volunteers.

Box 3.3: sRI lAnkA: DIsAsTeR

MAnAgeMenT AcT, 2006

The leader of the opposition and five members from the opposition party nominated by the speaker in consultation with the leader of the opposition are included as members of the national council for Disaster Management.

22


notificationfordisasterdeclarationinconsultationwith the director of NEMO. Evacuation to saveliveshasbeenaccordedpriority in theActandafailuretocomplywithevacuationordersissuedbytheministerinchargeofdisastermanagementcanattractapenaltyofuptosixmonthsimprisonmentorafineofthousanddollarsorboth.

3.2.6.3 Disaster mitigation of the builtenvironment is emphasised. It is mandatory forowners to undertake remedial action – basedon certificates issued by the hazard inspector –eitherwith theuseofpersonal funds,or throughNEMO’s assistance. Non-compliance invites apenal provision of a maximum imprisonment ofoneyear.TheDirectorofNEMO,forthepurposeof disaster management, has been empowered torequest the service of any employee, even fromtheprivatesectorforaperiodoffifteendays.Theemployer is bound to pay the salary and otherbenefitstotheemployeeasperhis/herentitlementduringthisperiod.

3.2.6.4 A system for registering and notifyingvolunteersaimsatutilisingtheservicesofvolunteersin a systematic way for disaster managementactivities. The Act provides for an accrediteddisasternotificationservicewhichfacilitatesreadyaccesstoahighlevelofexpertise.

3.2.7 Thailand: The Disaster Prevention and Mitigation Act, 2007

3.2.7.1 The thrust area of the Act is disasterprevention and mitigation rather than disasterresponse,asclearlyindicatedinthetitleoftheAct.TheNationalDisasterPreventionandMitigationCommittee (NDPMC) headed by the PrimeMinisteristheapexbodyfordisastermanagementin Thailand. The members of the CommitteeincludePermanentSecretariesofkeydepartments,commandants of the armed forces (Army, Navy,andAirforce),theDirectorGeneraloftheBureau

ofBudget,CommissioneroftheRoyalThaiPolice,andfiveintellectualsexperiencedincityplanning,disaster prevention and mitigation who areappointed by the Cabinet.The Director Generalof the Department of Disaster Prevention andMitigationactsastheSecretaryoftheCommitteethus providing a crucial interface between thehigh levelpolicymakingbodyandimplementingdepartment.WhilethehighpoweredCommitteeisconcernedwithpolicymakingandmonitoring,the Department of Disaster Prevention andMitigation is the central government unitentrusted to undertake any activities related todisaster management. Considering the size,importance and complexities involved in disastermanagementinmegacities,aseparatesectionhasbeendevotedtodisasterpreventionandmitigationintheBangkokMetropolitanarea.

3.2.7.2 TheActprovides for thepreparationandapprovaloftheNationalDisasterPreventionandMitigation Plan. Once the plan is approved, alldepartmentsandlocaladministrationarerequiredto follow it.There are interesting provisions: onemandates neighbouring provinces to support a

Box 3.5: ThAIlAnD: DIsAsTeR PRevenTIon

AnD MITIgATIon AcT, 2007

• The Act provides for the preparation and approval of the national Disaster Prevention and Mitigation Plan.

• Mandatory revision of the prevention and mitigation plan every five years.

• Provision in the Act for disaster prevention in the bangkok Metropolitan area.

• Provision for issue of duplicate or renewed documents as they are officially termed, for affected persons in the aftermath of a disaster.

• Immunity provided to officials who perform duties in accordance with the Act.

23


disaster affected province; another enjoins uponthelocaladministrator,whofunctionsasthelocaldirector, to assess the damage in the aftermathof a disaster and issue certificates of damage forrecoveryandcompensation.Totackletheimmensedifficulties faced by people in the aftermath ofdisasters due to the loss of essential documents,the Act includes a provision for the issue ofduplicate – the word in the Act is ‘renewed’ –documents. An affected person has to apply tothelocaladministrationfortheissueofduplicatedocuments. The local administration is expectedto notify the relevant government agencies toissuethedocumentstotheapplicantdirectlyoritcollectsthedocumentsandhandsoverthesametotheapplicant.

3.2.7.3 For efficient recovery, the director at thecentre,province,districtorlocaladministrationinhisrespectiveareacannotifypubliccharitiesanddelegatedutiesandworktothem.Officialstakingany decisions in good faith while performingtheirduties indisastermanagement areprovidedimmunityunderthecriminallaw.

3.2.7.4 TheActhasaspecificprovisiontoensurea revision of the prevention and mitigation planeveryfiveyears.Thereisalsoaprovisiontoarrestand imprison or fine any person found to becollecting money through fraudulent means byposing as a volunteer, officer or any individuallinked to services concerning disaster preventionandmitigationoperations.

3.2.8 Law of the Republic of Indonesia No 24 of 2007 Concerning Disaster Management

3.2.8.1 The Act classifies disasters into threecategories:Natural,non-naturalandsocialdisasters(the latter is defined as an event or a series ofevents caused by humans which includes socialconflictsbetweencommunitygroupsorincidentsof

terrorism).TheActclearlystatesthatthecriteriaforthedeclarationofadisasteristobebasedonfactorssuch as the number of victims, loss of materialpossessions,damagetofacilitiesandinfrastructure,coverage of disaster-affected area and the extentof socio-economic impact. The power to declarea national disaster is vested in the President.Thepower to declare a regional disaster vests in theProvincial Governor, while the Mayor has thepowertodeclareadisasteronthescaleofacity.

3.2.8.2 The onus for managing disasters restswith the national and regional governments,not with the local government. The NationalDisaster Management Agency (NDMA) is thenodal agency at the national level. This agencycomprisesaSteeringCommitteeandaManagingExecutive Body. The Steering Committee,comprising government officials working indisastermanagementandprofessionalcommunitymembers,ismainlyresponsibleforpolicymaking,monitoringandevaluationofdisastermanagementmeasures. The Managing Executive Body isresponsible for implementation of policy anddisastermanagement.Thereisacleardemarcationof powers and functions, with the Committeedeciding policy, and a permanent office andsecretariat that is responsible for execution. Theregionaldisastermanagementagenciesaremodeledonthelinesofthenationalagency.

Box 3.6: lAw of The RePUblIc of

InDonesIA no 24 of 2007 conceRnIng

DIsAsTeR MAnAgeMenT

• Responsibility of managing disasters is vested in national and regional governments, not with the local government.

• extraordinary penal provisions for vulnerability reduction.

• Rights and obligations of community are clearly spelt out in the Act.

24


3.2.8.3 There is a clear mention of the rightsand obligations of the community. One of therightsconferredoncitizensistherighttoreceivein aid basic amenities if they are affected by adisaster, and the right to receive compensationforlossessufferedduetoadisasterresultingfromconstruction failure. The government has a dutyto carry out disaster management activities andtoprovideaccurateinformationtothepublic.TheActalsoprovidescertainrightstothecommunityto participate in disaster risk reduction activities,especially when their community is affected.The Act distinctly defines vulnerable groups asinfants,preschoolers,pregnantwomenandnursingmothers,thedisabled,andtheelderly.

3.2.8.4 TheActcontainssomeextraordinarypenalprovisions to ensure vulnerability reduction. Thefollowingprovisionsillustratetheintentionsofthelawmakers:

Those who undertake high risk developmentwithoutdisasterriskanalysisandcreateadisasterwillbeawardedthreetosixyearsofimprisonmentand fine ranging from three hundred millionrupiahs to two billion rupiahs. If this negligenceleadstomateriallossthenthepenaltyis6-8yearsof imprisonment and a fine ranging from 600milliontothreebillionrupiahs.Ifthisnegligenceleadstofatalitiesthen8to10yearsjailtermanda fine ranging from 3 to 6 billion rupiahs wouldbe awarded. If the above crimes are committedintentionallythenthepenaltiesaremuchharsher.TheActhasbeensupplementedbyawellthoughtout regulation, The Government Regulation ofthe Republic of Indonesia Number 21 of 2008Concerning Disaster Management, to ensureadequatelegalframeworkformanagingdisasters.

3.2.9 The Philippines: The Disaster Risk Reduction and Management Act, 2010

3.2.9.1 As a country prone to a large number

and variety of disasters, the Philippines hasdemonstratedahighlypro-activestandwithregardtodisasterlegislation.Withinaspanoftwoyears,twolegislationswerepassedinthePhilippines:ThePhilippines Disaster Management Act of 2009,andthePhilippinesDisasterRiskReductionandManagementActof2010.As thenomenclaturesindicate, there has been a shift from simplymanagingdisasters toreducingtheriskby tryingtopreventandmitigatedisasters.Interestingly,theActalsoprovidesforacomplexemergencywhichisdefinedasaformofhuman-inducedemergencyinwhichthecauseofcrisisaswellasassistancetotheafflicted is complicatedbyan intense levelofpoliticalconsiderations.

3.2.9.2 The Act’s legal framework goes beyondlookingatdisastersthataresuddeninnature.Italsoincludes the steps to be taken for mitigating thesocio-economicimpactofclimatechangeandforaframeworkofpolicies,programmesandprojects

Box 3.7: The PhIlIPPInes: DIsAsTeR RIsk

ReDUcTIon AnD MAnAgeMenT AcT, 2010

• national framework to be reviewed once in five years.

• vertical and horizontal integration of all agencies of government in disaster risk reduction and management plan in order to cover all phases of disaster management.

• The apex agency, the national Disaster Risk Reduction and Management council, besides key departments, represents the interests of cities, civil society organisations, civil defence, and private sectors.

• Detailed penal provisions for offences in the Act.

• Provision of local Disaster Risk Reduction and Management fund.

• congressional oversight committee to monitor and oversee the implementation of the Act.

• well laid out criteria and procedures for accrediting community disaster volunteers.

25


aimed at climate change adaptation and disasterrisk reduction. The vulnerable and marginalisedgroups are defined as those facing a higherexposure todisaster risk andpoverty – includingbut not limited to women, children, the elderly,andthedifferently-abled,andethnicminorities.Avertical andhorizontal integrationof all agenciesinthegovernmentisaimedatthroughaNationalDisaster Risk Reduction and Management Planwhichcoversallphasesofdisastermanagement.

3.2.9.3 The National Disaster Risk Reductionand Management Council (NDRRMC) isthe apex agency at the national level for policymaking, coordination, integration, supervision,and monitoring and evaluation functions. TheNDRRMC is headed by the Secretary of theDepartment of National Defense. The Council’smembersincludeallSecretariesofkeyDepartments,theChiefofArmedforces,theChiefofNationalPolice and other important functionaries at thenationallevel.Inaddition,torepresenttheinterestsoftheprovinceandcities,theActprovidesthatthePresident of the Union of the Local Authoritiesof the Philippines, the President of the Leagueof Provinces in Philippines, the President of theLeagueofMunicipalities in thePhilippines, fourrepresentatives of civil society organisations, theAdministratorofOfficeoftheCivilDefenseanda representative from the private sector be mademembers of the Council. The National Councilhas the important task of providing a nationalframeworkwhichistobereviewedeveryfiveyearsor as per requirement. The National Council isalso required to make a recommendation to thePresident regarding the declaration of a state ofcalamity in the areas affected by a disaster. TheCouncil is also expected to guide and monitordisaster management activities, mobilise andmanageresourcesfordisasterriskreduction.

3.2.9.4 Under the Act, the primary mission ofthe Office of Civil Defense is to administer a

comprehensivenational civildefenceanddisasterrisk reduction and management programme,whichincludestheestablishmentofaninstitutefortrainingandcapacitybuilding,amongotherthings.TheAdministratoroftheOfficeofCivilDefensealso serves asExecutiveDirectorof theNationalCouncilthusprovidingacrucialinterfacebetweenthepolicyandoperationalwing.

3.2.9.5 Disaster risk reduction and managementorganisations at the regional level have beenenvisaged on the same lines as the national levelagency and below them are the Provincial, Cityand Municipal Disaster Risk Reduction andManagementCouncils,aswellastheLocalDisasterRiskReductionandManagementCouncilsattheBarangorwardlevel.Alocaldisasterriskreductionandmanagementofficeistobeestablishedineveryprovince,city,municipalityorBarang.TheDisasterRiskReductionandManagementCouncilsaretocarryoutriskreductionanddisastermanagementactivitiesintheirrespectivejurisdiction.

3.2.9.6 The Act lays down the criteria andprocedure for accrediting community disastervolunteers. Injuries or fatalities suffered whilebeingengagedinanyoftheactivitiesspecifiedintheActareentitledtocompensatorybenefits.Theintegrationofdisasterriskreductioneducationaspartof thecurriculum inall typesof educationalinstitutions – schools, colleges, technical,professional and vocational institutions – is oneof the highlights of the Act. Another innovativeprovisionistomakedisastermanagementtrainingcompulsoryforallpublicsectoremployees.

3.2.9.7 As per the Act, the President of thecountry, based on the recommendation of theNational Council, declares a state of calamityin any city, province, municipality, or regionand, if needed, requests international assistance.Followingthedeclarationanautomaticimpositionofpricecontrolonbasicnecessitiesinthecalamity

26


zone would come into effect and be monitoredby the Local Price Coordination Councilwhich checks overpricing/hoarding of essentialcommodities, medicines and petroleum products.Thereisaprovisionforthegovernmentorlendinginstitutionstograntinterestfreeloanstothemostaffectedsectionsofthepopulation.

3.2.9.8 There isanentire sectiondevoted toactsthatareprohibitedatsuchtimesofcrisis.Someofthemareasfollows:

• Buying from disaster relief agencies forconsumption or resale, any relief goods,equipmentorotheraidcommoditieswhichareintendedfordistributiontodisastervictims.

• Buying from recipient disaster victims forconsumption or resale, any relief goods,equipmentorotheraidcommoditiesreceivedbythem.

• Sellingof relief goods, equipmentorother aidcommoditieswhichareintendedfordistributiontodisastervictims.

• Forciblyseizingreliefgoods,equipmentorotheraidcommoditiesintendedfororconsignedtoaspecificgroupofvictimsorreliefagency.

• Diverting or mis-directing relief goods,equipmentorotheraidcommoditiestopersonsotherthantherightfulrecipientorconsignee.

• Deliberateuseoffalseorinflateddatatosupportrequestsforfundingreliefgoods,equipmentorotheraidcommoditiesforemergencyassistanceorlivelihoodprojects.

3.2.9.9 TheActhasdetailedpenalprovisions foroffencesrangingfromafineoffiftythousandpesostofivehundredthousandpesosorimprisonmentofsixtotwelveyearsorboth.

3.2.9.10TheActalsodwellsonthecreationofaLocalDisasterRiskReductionandManagement

Fund (LDRRMF). Not less than five percent oftheestimatedrevenuefromregularsourcesistobesetasidefor thisFund.ANationalDisasterRiskManagement and Recovery Fund would be usedfor disaster mitigation, risk reduction, relief andrecoveryactivities.

3.2.9.11ACongressionalOversightCommitteeisprovidedforbytheActtomonitorandoverseetheimplementationofitsprovisions.TheCommitteeistoincludesixmemberseachfromtheSenateandtheHouseofRepresentatives,withthechairpersonsof National Defense and Security of the Senateas well as the House of Representatives as jointChairpersonsofthiscommittee. TheCommitteewould include five more members from eachchambertobedesignatedbytheSenatePresidentandtheSpeakeroftheHouseofRepresentatives,respectively.Theminorityshallbeentitledtopro-rata representation, but shall have at least tworepresentativesfromeachchamber.

3.2.9.12 The Act has an inbuilt Sunset Reviewby the Congressional Oversight Committee forinstituting either amendments or changes as perrequirementorbringinginremediallegislation.

3.2.10 Japan: the Japan Disaster Counter Measures Basic Act 1997

3.2.10.1TheDisasterCounterMeasureAct,1997,clearly spellsout thedutiesof thevariousorgansof the state such as the national government,prefectures,cities,towns,andvillages.Italsospellsout the duties of the national and local publiccorporations. They are mandated to contributetowards the cause of disaster prevention throughtheirrespectivebusinessesinviewofthefactthattheir business is for public good.The duties andresponsibilitiesofresidentsandotherstakeholdershavealsobeenspeltout.Itisthedutyofcitizenstofollowwhatismandatoryunderlaw,tocontributetowardsdisasterpreventionwhichcouldalsobebyformingvolunteerdisasterpreventiongroups.

27


3.2.10.2 The Act emphasises disaster preventionat all levels. If the area likely to be affected isspreadovermorethanoneprefecture,theActcallsfor a joint plan to be prepared by the concernedprefecturalheads.TheCentralDisasterPreventionCouncil set up in the Prime Minister’s Office isthe main national level agency responsible forpolicy, coordination and other matters related todisaster prevention. The Prime Minister is theChairman of the Council. A separate secretariatof the Council transacts its business. Councilsat the level of prefecture, city, town and villageundertake disaster prevention activities in theirrespectivejurisdictionsonthelinesoftheNationalCouncil.

3.2.10.3 The Prime Minister declares a stateof emergency in consultation with the CentralDisasterPreventionCouncil inthewholeorpartof the affected area, upon referring the matterto a Cabinet Conference. Disaster preventiondrills have been given importance and detailedprovisionshavebeenmadeforthesame.Similarly,detailed provisions for issuing evacuation ordershave also been provided. The Act empowers thestate and local governments to allow reduction,exemptionordefermentofnational/localtaxesorother assessments imposedby thesegovernmentsthroughotherappropriateActs.

3.2.11 Robert T. Stafford Disaster Relief and Emergency Assistance Act, as Amended, and Related Authorities, FEMA

592, June 2007 and The Post-Katrina Emergency Management Reform Act of 2006

3.2.11.1ThebasicActknownasRobertT.StaffordDisaster Relief and Emergency Assistance Act,1988,isanamendedversionoftheDisasterReliefAct, 1974. The Act was basically designed tobringinanorderlyandsystemicmeansoffederalassistancetostateandlocalgovernmentsaffectedbynaturaldisasters tohelp themcarryout theirresponsibilities to aid citizens. Hence the ActdealsextensivelywithassistancetotheStatesformitigationaswell as recovery. It alsodealswithpost-disasterassistancetoindividualsandfamiliesforreliefandrecovery.However,aftersettingupthe Federal Emergency Management Agency(FEMA) in 1978, the federal government alsotookupon itself theonusof assisting theStatesin search and rescue operations. The basic Acthasundergonemanyrevisionsandamendments,the most important among them being theHomeland Security Act of 2002, and the Post-Katrina Emergency Management Reform Act,2006.

3.2.11.2 The Stafford Act defines “emergencies”as any occasion or instance determined by thePresident for which federal assistance is neededtosupplementstateorlocaleffortsandcapacitiestosavelives,protectproperty,ensurepublichealthand safety, or to lessen or avert the threat of acatastrophe in any part of the United States ofAmerica. According to the Act, “major disaster”meansanynaturalcatastrophe(hurricane,tornado,storm, high water, wind driven water, tidal wave,tsunami, earthquake, volcanic eruption, landslide,mudslide, snowstorm and drought); fire, flood,or explosion regardless of cause, in any part oftheUSA,which,asdeterminedby thePresident,causesdamageofsufficientseverityandmagnitudeto warrant major disaster assistance under thisAct. The assistance supplements the efforts and

Box 3.8: JAPAn DIsAsTeR coUnTeR

MeAsURes bAsIc AcT, 1997

• emphasises disaster prevention drills and has detailed provisions for the same.

• clearly spells out the duties and responsibilities of residents and other stakeholders.

28


available resources of States, local governments,and disaster relief organisations in alleviatingdamage,loss,hardshiporsufferingcausedthereby.Thus the definition of disaster/emergency seemsto be somewhat symbiotic in nature. An eventthatwarrantsdisasterassistance,asdecidedbythePresident,isadisaster/emergency.

3.2.11.3TheHomelandSecurityAct,2002,definesa“catastrophicincident”asanynaturaldisaster,actofterrorism,orotherman-madedisasterthatresultsin extraordinary levels of casualties or damageor disruption, severely affecting the population(including mass evacuations), infrastructure,

environment, economy, national morale, or thefunctioningofthegovernmentinanarea.

3.2.11.4Thepowertodeclareaneventasadisastervests in the President. All requests for disasterdeclaration by the President are to be made bytheGovernorof theaffectedState if thedisasteris of such severity and magnitude that effectiveresponseisbeyondthecapabilitiesoftheStateoraffected local governments, necessitating federalassistance.Basedontherequestof theGovernor,the President may, under the Act, declare that amajor disaster or emergency exists. The Act hasexhaustiveprovisions forprovidingvarious formsofassistancetotheaffectedStatesandindividualsfor relief and recovery. The Act provides fordirect federal assistance to the States and localgovernments for disaster mitigation projects.Thenormsforsuchassistancehavebeenwell laidoutin the Act. In addition to financial assistance,the federal government also provides technicalassistance.AseparatefundknownastheNationalPre-disasterMitigationFundhasbeenestablishedforfundingmitigationprojects.TheActempowersfederal agencies to appoint temporary personnel,expertsandconsultants,acquireorhireequipment,services, materials and supplies to perform anyof the services under the Act, by-passing normalprocedures.

3.2.11.5 The Act makes it mandatory to insureproperties restored or reconstructed with federalassistance. Persons who fail to insure propertiesrestored with Federal assistance are no longereligible for assistance in case their property isdamaged in the event of a subsequent disaster.The Act outlines a National Recovery StrategyandNationalDisasterHousingRecoveryStrategyclearly.

3.2.11.6ThebasicdifferencebetweenthedisastermanagementsystemintheUSAandmanyothercountriesisthattheFEMAisnotacommitteeor

Box 3.9: RobeRT T. sTAffoRD DIsAsTeR

RelIef AnD eMeRgency AssIsTAnce AcT,

As AMenDeD, AnD RelATeD AUThoRITIes,

feMA 592, JUne 2007, AnD The PosT-kATRInA

eMeRgency MAnAgeMenT RefoRM AcT of

2006

• Detailed provisions for assistance to states for mitigation as well as recovery.

• The power to declare an event as a disaster vests in the President.

• feMA is not a committee/council; rather, it is a full-fledged office with subordinate offices at the regional level.

• feMA functions under the Department of homeland security.

• special provision for taking care of the needs of disabled persons during disasters.

• Inter-agency Task force established by the President for coordinating implementation of pre-disaster, hazard mitigation programmes.

• Mandatory insurance of the properties restored or reconstructed with federal assistance.

29


anadvisorycouncil.Itisafull-fledgedoffice,withsubordinate offices at the regional level. FEMAhasover7,400employeesacross thecountry–atitsheadquarters,tenregionaloffices,theNationalEmergency Training Center, the Center forDomestic Preparedness/Noble Training Centerandotherlocations,thusmakingitanorganisationlinkedhorizontallyaswellasverticallytorespondto emergency management. FEMA has trainednational response teams, regional response teams,regionalofficestriketeamsandregionalemergencycommunicationandcoordinationworkinggroups.In addition, theAct alsoprovides for the settingupoffieldofficesasdeemednecessaryinaffectedareasforbetteradministrationofrescueandrelief.FEMA has the responsibility to prepare FederalResponseplansandprogrammesforthecountry’semergency preparedness and sponsor and directsuch plans and preparations. FEMA functionsundertheDepartmentofHomelandSecurity.TheNationalResponsePlanprovidesforaclearchainof command to lead and coordinate the federalresponsetoanydisaster.

3.2.11.7TheAdministratorofFEMAisappointedby the President on the advice and consent ofthe Senate and directly reports to the Secretarywithoutbeingrequiredtoreportthroughanyotherofficial of the Department. The Act authorisestheFEMAAdministrator,asofMarch31,2007,to provide emergency-management-relatedrecommendations directly to the Congress afterinformingtheSecretary.TheActclearlyspellsoutthe functions and powers of the Administratorwho is also responsible for the management andmaintenanceof theNational IncidentCommandSystem.

3.2.11.8 The Post-Katrina Act provides for thesetting up of a National Advisory Council toensure effective and on-going coordination offederalpreparedness,protection,response,recovery,and mitigation in the event of natural disasters,

actsof terrorism,andother man-madedisasters.The National Advisory Council advises theFEMAAdministratoronallaspectsofemergencymanagement. The National Advisory Councilincorporates the inputs of the state, tribal andlocal governments and also of the private sectorin the development and revision of the NationalPreparedness Goal, the National PreparednessSystem, the National Incident ManagementSystem, the National Response Plan and otherrelated plans and strategies.The members of theNational Advisory Council are appointed bythe Administrator, and, to the extent practicable,come from all parts of the country, representinga substantive cross-sectionofofficials, emergencymanagers and emergency response providersfrom the state, tribal and local governments, theprivatesector,electedStateandlocalgovernmentexecutives, experts from the public and privatesector,representativesfromthedisabilitysector,andNGOs. Regional offices have Regional AdvisoryCouncils appointed by the Regional Heads. Thepowers and functions of the Regional AdvisoryCouncils are similar to that of the NationalAdvisoryCouncil.

3.2.11.9 Post-Katrina, a National IntegrationCenter was created and provided with specificrolesandresponsibilitiesforincidentmanagement.The Act has special provisions for taking care ofthe needs of the disabled during disasters. TheAdministrator is required to appoint a DisabilityCoordinator in consultation with the NationalCouncilofDisabilitiesandInterAgencyCouncilinordertoensurethatthereliefneedsofthedisabledareaddressedproperlyinemergencypreparednessintheeventofadisaster.

3.2.11.10 There is an Inter-Agency Task Force,too, established by the President of the US forthe purpose of coordinating the implementationof pre-disaster hazard mitigation programmesadministered by the federal government. The

30


Director, FEMA, acts as the Chairperson of theTask Force. The membership of the Task Forceincludesrepresentativesofrelevantfederalagencies,stateandlocalgovernmentorganisations,andtheAmericanRedCross.

3.2.11.11 The main responsibility for disastermanagement, including response, rests primarilywiththeStatesandlocalgovernments.ThefederalgovernmentprovidesassistanceonlyiftheimpactofthedisasterisbeyondthecopingcapacityoftheStates and local governments. While the federalAct defines the roles and responsibilities of thefederal government, the States have their ownemergencyanddisasterreliefActs.Theassistanceof the federal government is supplementary innature.Upondeclarationofadisaster/emergency,aFederalCoordinatingOfficerisappointedfortheaffectedareaandisresponsibleforinitialappraisal,establishment of field offices and coordinatingrelief.

3.2.11.12 An important provision is the non-liability of the federal government for any claimbased upon the exercise or performance of orthe failure to exercise or perform a discretionaryfunction/dutyonthepartofthefederalagencyoranemployeeofthefederalgovernmentincarryingouttheprovisionsoftheAct.

3.2.11.13 Theevolutionof disastermanagementlegislationintheUScontainssomelessonsforusasenumeratedbelow:

• An ‘all hazards approach’ which assumes thatterrorism and natural disasters can be tackledwith a similar approach towards preparednessandresponseiscounterproductive.

• Theagencyresponsiblefordisastermanagement,particularly emergency management, shouldhave considerable autonomy. The elevation ofFEMA’sstatus,post-Katrina,isacaseinpoint.

3.2.12 New Zealand: Civil Defence and Emergency Management Act, 2002

3.2.12.1TheofficeoftheDirector,CivilDefenceand Emergency Management, is the nodalagency for all disaster management functions inNew Zealand. Every regional council and everyterritorialauthoritywithinthatregion,aspertheAct,istounitetoformaCivilDefenceEmergencyManagement Group as a joint committee. Aunitary authority either alone or jointly withother unitary authorities bordering it should setup a Civil Defence Emergency ManagementGroup. Regional Councils and local authoritieshold membership of such groups. The group isvested with a broad range of functions, fromassessing risks to carrying out recovery activities.ThislargergroupissupportedbyaCivilDefenceEmergency Management Coordinating Group,comprising CEOs of local authorities; a seniorpolicepersonnelassignedbytheCommissionerofPolice;aseniorfireofficerassignedbytheNationalCommander;theCEOofthehospitalsandhealthservicesoperatinginthatareaorher/hisnominee;andonemoreco-optedmember.The functionofthisexecutivegroupistoprovideadviceondisastermanagement, implement the decisions of theCivil Defence Emergency Management Groupand oversee the implementation, development,maintenance, monitoring, and evaluation of theCivil Defence Emergency Management GroupPlan.

3.2.12.2 A state of national emergency for aparticular area or district can be declared bythe concerned minister responsible for disastermanagement.TheActmandatesthattheParliamentmust meet within seven days of declaration of anational emergency. A Civil Defence EmergencyManagement Group must appoint at least onepersonasapersonauthorisedtodeclareastateoflocalemergencyforitsarea.ThismembermustbechosenfromamongstthemembersoftheGroup.

31


TheActconfersspecialpowersontheGroupsandto the minister for carrying out various rescue,search and mitigation activities upon declarationof a state of emergency. Penal provisions whichincludefinesandimprisonmentarestated.Failuretoevacuatepremiseswhendirectionsforthesameare issued is treated as an offence that warrantspenalty.

3.2.12.3 The Acts warrants the preparation of aNationalCivilDefenceEmergencyManagementPlan. In line with the National Plan, each CivilDefence Emergency Management Group isrequired to prepare a Civil Defence EmergencyManagementGroupPlan.

3.2.13 Antigua and Barbuda Disaster Management Act, 2002

3.2.13.1TheDirectorofPreparednessandResponse,whoisapublicofficer,isresponsibleforalldisastermanagement related activities and reports directlyto thePrimeMinister.TheDirector is assistedbypublicofficersandotherpersonsappointedforthepurpose of disaster management including thosedesignated to discharge the functions of hazardinspectors and shelter managers appointed undertheAct. Theworkscopeof theDirector includesa range of functions such as review and appraisalof the various programmes in the light of theAct, making recommendations to the President,developingpoliciesrelatedtoallaspectsofdisastermanagement,coordinatingwithNGOs,conductingIEC activities, preparing hazard risk maps anddisaster management plans, providing technicaladviceon regulationsmadeunder thisAct or anyotherActfordisastermanagementrelatedactivities.Inadditiontothese,theDirectorisalsovestedwiththepowertoconductinvestigations,studies,surveys,research and analysis related to ecological systemsandenvironmentalquality,anddocumentanddefineecologicalchangesintheenvironmentasthesemaysignifyalikelihoodofdisasters.

3.2.13.2 The Act provides for establishing aNational Preparedness and Response AdvisoryCommittee chaired by the Prime Minister. TheothermembersoftheCommitteeare:

• TheMinisterresponsibleforpublicsafety.

• A Minister of public office nominated by thePrimeMinister to serve as theChairperson inthe absence of the Prime Minister from anymeeting.

• SuchothersasmaybenominatedbythePrimeMinister to represent the Police Force, theAntigua and Barbuda Defence Force, the FireService, the Meteorological Department, theAntigua Utilities Authority. the Ministry ofPublicHealth,theMinistryofPublicSafety,theMinistryofEnvironment,theMinistryofPublicWorks,theMinistryofLocalGovernments,otherMinistries, Departments of Government andstatutorybodiesasthePrimeMinisterthinksfit;otherpersonsororganisations,includingNGOs,whichvolunteerorarerequiredbylawtoperformfunctions related to preparedness, mitigation,response and recovery from emergencies anddisastersinAntiguaandBarbuda.

3.2.13.3 The Director of Disaster PreparednessandResponseactsastheSecretaryoftheNationalAdvisoryCommittee,providingacrucialinterfacebetween the Advisory Committee, which isthe larger policy making body, and the actualimplementingagency.

3.2.13.4 The Director is responsible for theestablishment and maintenance of a NationalEmergencyOperationsCentre to functionas theheadquarters of response related activities duringan emergency. The Director is empowered toestablishandmaintainsupplementaryEmergencyOperationsCentresasaback-upforceonthebasisofgeographical locationor anyotherneed-basedcriteria.

32


3.2.13.5TheActprovidesforthenotificationofespeciallyvulnerableareasbythePrimeMinister,based on the recommendations of the Director,for the purpose of mitigation, preparedness,responseandrecovery.Aspecialareaprecautionaryplan is prepared for these notified areas. Theprecautionary plans include strategies, policiesand standards for development, standards ofenvironmental impactassessmentandprovisionsfor designating any area as a protected area,prohibiting the removal of vegetation, stones,sand or gravel. The Act calls for a broad-basedconsultation with the general public beforefinalisingplansfornotifiedareas.

3.2.13.6TheActadequatelyprotectsanypersonor government employee for performing dutiesundertheAct.NopersoncanbeheldpersonallyliableforanyactperformedingoodfaithinthecourseofcarryingoutdutiesaslaiddownundertheAct.

3.2.13.7ItisworthmentioningthatAntiguaandBarbudaisasignatorytoanagreementsignedby14CaribbeancountriestoestablishTheCaribbeanDisasterEmergencyResponseAgency.Thefragilenature of their economies, and the vulnerabilityof these countries to floods, hurricanes, volcaniceruptions and other natural and man-madedisastershavebroughtthesecountriestogether.

Section ii

3.3 Highlights from Different Countries3.3.1 A study of the disaster managementlegislation in a select number of developed anddeveloping countries, reveals interesting features.Considerthefollowing:

• InEcuador, thenotionof risk-focuseddisastermanagement emerged directly from the

Constitutionadoptedin2008.

• InHonduras,theLawonDisasterManagementSystemof2010setsoutdecentralisationasoneoftheprimaryguidingprinciplesofthecountry’smanagementsystem.

• InSiberia,thelawenactedin2009onemergencysituations lays out a public right to bewarnedaboutthedisasterrisk.

• The Zambian Law, enacted in 2010, providesforacreationofSatelliteDisasterManagementCommitteescoveringoneorseveralvillages.

• TheBolivianlaw,2000,providesthatallpersonswho live within the national territory have aright to protection of their physical integrity,productive infrastructure, theirgoodsand theirenvironmentfromdisastersandemergencies.

• TheSlovenianLaw,2006,stipulatesafineincasethe local authorities fail to develop a disastermanagementplan.

• Municipal corporations such as La Paz inBoliviaandMedellinandBogota inColombiahavebudgetsbiggerthantheirnationalbudgetsfor disaster management and well structuredarrangements, including separate offices, fordisastermanagement.

3.3.2 Chinahasacomprehensivelegalsystemfor disaster management, with over 30 laws andregulationscoveringvariousaspectsofemergencymanagementanddisasterriskreduction:

• TheEmergencyResponseLawof2007providesthe overall legal framework of emergencyresponsesinthecountry.

• Other laws include the Law on EarthquakePrevention,theMeteorologicalLaw,theLawonWaterandSoilConservation,theLawonFire-FightingandtheLawonProductionSafety.

3.3.2.1 The Ministry of Civil Affairs (MoCA)

33


is the focal point for disaster management inChina. The MoCA works through the NationalDisaster Reduction Centre (NDRC) whichprovidestechnicalandspecialisedsupportfortheimplementationofnationallawsandregulations.

3.3.2.2 The China National Committee forDisaster Reduction (NCDR), headed by a VicePremier of the State Council, operates as aninter-agency coordination body under the StateCouncil.TheStateCouncilstudiesandformulatesprinciples,policiesandplansfordisasterreduction;italsocoordinatesmajordisasteractivities,guideslocal governments, and promotes internationalexchangesandcooperation.

3.3.3 Brazil’sLaw12,340ofDecember2010andDecree 7,257 of August 2010, provide the mainlegalframeworkofdisastermanagement.NationalCivilDefence is themain agency responsible for“thesetofpreventiveactions,relief,assistanceandrecoveryaimedatpreventingdisasters,minimisingtheirimpactsonthepopulationandrestoringsocialnormality”.TheMinistry ofNational Integration(MNI), through its National Secretariat of CivilDefence(NSCD),coordinatestheactivitiesoftheNationalCivilDefence.

3.3.3.1 TheMinistryofCities(MoC)wascreatedin2003tocoordinate“Preventionanderadicationof risks in settlements,” within the framework ofthe“Urbanisation,RegularisationandIntegrationof Precarious Settlements” programme. It offerssupporttomunicipalitiesthroughthearticulationofasetofactionsaimedatreducingriskinurbanareas.

3.3.4 Canada’s Emergency Management Actof 2007 provides that the Federal Minister ofPublic Safety and Emergency Preparedness shallberesponsiblefor“exercisingleadershiprelatingtoemergencymanagementinCanadabycoordinating,amonggovernmentinstitutionsandincooperation

with the provinces and other entities, emergencymanagementactivities”.Section4oftheActstatesthat the Minister’s responsibilities include thefollowing:

• establishingpolicies,programsandothermeasuresrespectingthepreparation,maintenance,testingandimplementationbyagovernmentinstitutionofemergencymanagementplans

• providing advice to government institutionsrespectingthepreparation,maintenance,testingandimplementationofemergencymanagementplans

• analysing and evaluating emergencymanagement plans prepared by governmentinstitutions

• monitoring potential, imminent and actualemergencies and advising other ministersaccordingly

• coordinating the Government of Canada’sresponsetoanemergency

• coordinating the activities of governmentinstitutionsrelatingtoemergencymanagementwith those of the provinces – and supportingthe emergency management activities of theprovinces–andthroughtheprovinces,thoseoflocalauthorities

• establishing arrangements with each provincewhereby any consultation with its lieutenantgovernorincouncilwithrespecttoadeclarationof an emergency under an Act of Parliamentmaybecarriedouteffectively

• coordinating the provision of assistance to aprovince in respect of a provincial emergency,other than theprovisionoffinancial assistanceandthecallingoutof theCanadianForces forserviceinaidofthecivilpowerunderPartVIoftheNationalDefenceAct

• providing assistance other than financial and

34


other assistance to a province if the provincerequests,etc.

3.3.4.1 Section6oftheActoutlinestheemergencymanagement responsibilities of each minister toidentifyrisksthatarewithinorrelatedtohisorherareaof responsibility– including those related tocriticalinfrastructure–andtoprepareemergencymanagementplanstoaddressthoserisks.

3.3.5 The following observations by UNDP initsreviewofthevariousdisastermanagementlawsareworthmentioninghere.

3.3.5.1 In Colombia, the Civil Defense headpresidesovertheNationalOperationsCommitteeandisinchargeofsearch,rescueandrelief.Somecountries have included protection from hazardsasafundamentalright.StLuciaprovidesfinancialincentives such as tax breaks for undertakingmitigation measures. Natural Hazard ImpactAssessmenthasbeenmadeapartofEnvironmentalImpactAssessmentintheCaribbean.

3.3.5.2 In several countriesdisastermanagementis affiliated to the Ministry of Home Affairs/Interiors. However the subject of disastermanagement housed in other ministries isalso not uncommon: the Water and HousingMinistry( Jamaica);theMinistryofEnvironment(Kyrgyzstan); the Ministry of Foreign Affairs(Mozambique);theMinistryofLocalGovernmentand Decentralisation (Albania); the Ministry ofWomen’s Empowerment and Social Welfare (SriLanka);andtheMinistryofDefense(Bolivia).

3.3.5.3 Which ministry houses disastermanagementgivesacluetothenatureofthemajordisaster the country is prone to, its dependencyoninternationalaidaswellasthemostimportantaspectofmitigationfromthepointofviewofthatparticularcountry.

3.3.5.4 The Australian Emergency Management

System helps to understand the approach of theNational Government and the member Statesin the Commonwealth towards managing andmitigatingtheimpactofdisasters.TheAustralianGovernment Attorney General's Departmentserves the people of Australia by providingessential expert support to the Government inthe maintenance and improvement of Australia'ssystemoflawandjusticeanditsnationalsecurityand emergency management systems. Primeresponsibility for the protection of life, propertyand environment rests with the States andTerritories.However, theAustralianGovernmentiscommittedtosupportingStatesandTerritoriesin developing their capacity for dealing withemergencies and disasters, and provides physicalassistancetoStatesorTerritoriesonrequestwhentheycannotreasonablycopeduringanemergency–duetoresourcesbeinginadequate,unavailableorovercommitted.

3.3.5.4.1StatesandTerritories areresponsibleforthe protection and preservation of the lives andpropertyoftheircitizens.Thisincludeslegislativeand regulatory arrangements within which theemergency management organisations of eachState and Territory operate. These arrangementsare normally established through State DisasterPlans which identify the lead /control agencywhich is to be responsible for planning andresponseforaparticulartypeofincidentorhazard.For instance, the key response agencies for astructuralcollapseincidentwouldnormallyincludethepoliceaswellasthefire,ambulanceandState

Box 3.10: bolIvIAn lAw, 2000

The bolivian law, 2000, provides that all persons who live within the national territory have a right to the protection of their physical integrity, productive infrastructure, their goods and their environment from disasters and emergencies.

35


Emergency Services. All States and Territoriesmaintain a plan for Urban Search and Rescue.Thefirebrigadeineachjurisdictionisresponsiblefor the establishment, maintenance, exercise andupkeepofthearrangementsandplan.ThefederalgovernmentplaysakeyroleincapacitybuildingoftheStates.Butwhere theCommonwealthhas totakethelead,theydoso–forinstance,insettingup the AustralianTsunamiWarning System andtheNationalAerialFireFightingSystem,amongothers.

3.3.6 General Principles for the Institutional and Legal System for Disaster Risk Management

Lawsandpoliciesrelatedtodisastermanagementare important components of “good governance”.The basic principles which need to guide themare accountability, effectiveness, participation,sustainability, and peoples’ rights. As a UNDPreviewsuggests,theinstitutionalandlegalsystemsfor DRM should aim at the following specificobjectives that reflect the principles of “goodgovernance”:5

• Elevating disaster risk management as a policy priority: National policies provide firmcommitmentsofthestatetoaddressdevelopmentpriorities at hand and give a clear mandate todecision-makers, planners, practitioners as wellasthecivilsociety.

• Generating political commitment: It shouldprovide an institutional basis for generatingpolitical commitment for reforms, bringinggreater regulation of development process, andincreasingtheallocationofresources.

• Promoting disaster risk management as a multi-sector responsibility: Disaster Risk Management

5UNDP,2007,A Global Review: UNDP Support to Institutional and Legislative Systems for Disaster Risk Management,pp.xiii-ix.

is not a separatediscipline, but a cross-cuttingissuethatneedstobeconsideredinmanyareasandsectorsandatalllevelsofpolity,societyandeconomy.

• Assigning accountability for disaster losses and impacts: Good governance in disaster riskmanagement facilitates transparency andaccountability and thus reduces opportunitiesforcorruptionatthegovernmentandaswellascivilsocietylevel.

• Allocating necessary resources for disaster risk reduction: Amongst the most telling indicatorsof political commitment for disaster riskmanagementisthelevelofresourcesallocatedtoriskreductionbygovernments,civilsocietyandprivatesectors.

• Enforcing the implementation of disaster risk management: It would include a number ofmeasures such as risk and impact assessments,early warning systems, public awareness,educationandtraining,asmuchasenvironmentaland natural resource management, social andeconomic development practices, physical andtechnicalmeasuresand lastlypreparednessandemergencymanagement.

• Facilitating participation from civil society andthe private sector: Whilst it is recognised thatthe state has important responsibilities indisaster risk management, the roles of civilsociety and the private sector are crucial forsuccess.Participatoryprocesses ensure that theneedsandprioritiesofthemostvulnerableandmarginalisedpopulationsaremet.

3.4 A Summary of Findings3.4.1 Despitethefactthatthelegalframeworkfordisastermanagementdependsonmanyfactorssuchasthenatureofhazards,thetypeofpoliticalset-upaswellasthesizeandlocationofthecountryanditssocio-economicandhistoricalfactors,there

36


areseveralcommonfeaturesintheActsacrossthecountriesstudiedwhichincludethefollowing:

3.4.2 Most countries have a national levelnodal agency/committee/ council chaired by thePresident/PrimeMinister:

• Agencies/committees/councils similar tothe national agency function at the regional/provincial/local level. The national agency andits counterparts in the provinces are mostlyresponsible for policy making, monitoringand providing guidelines. Operation andimplementation has been entrusted to eitheran existing office like the Office of the CivilDefenceorprovisionshavebeenmadetocreateanewbodywithfull-timestaff.

• While the national agency/committee/agencytakescollectivepolicydecisions,thedepartmentorofficemeantforexecutionhasthenecessaryfull-timehumanresourcestoimplementpolicydecisions.

• Themembersofthesecommitteesaregenerallydrawn from various government departments,armedforces,policeforce,experts,NGOs,headsof provincial and local governments and evenfromtheprivatesectortogiverepresentationtovariousstakeholders.

• Most countries have an advisory committeealong with technical advisory committees.TheDirector of the officeordepartment in chargeof implementation of disaster managementactivities acts as the Member Secretary of theAdvisoryCommitteeandthusprovidesacrucialinterfacebetweenboth.

3.4.3 In the various Acts reviewed, there is noexample of an independent agency outside thegovernmentwhichtakescareofoperationalaspectsofdisastermanagement:

• Usually an office or a ministry takes care of

the operational aspects. Even FEMA, whichenjoys a high level of autonomy, is located inthe Department of Homeland Security. Theadvisory council or bodyor committee creatediseitherlocatedinthesameministrythattakescareofdisastermanagementorintheofficeofthePrimeMinisterorthePresident.

• Creatingmultiplecommitteeswithoverlappingresponsibilities has been avoided. Committeesareexpectedtodiscussanddebateandprovideguidance and monitor rather than carry outoperationalfunctions.

3.4.4 AlmostalltheActshaveaprovisionforthedeclarationofadisaster,althoughthepowervestedto declare a disaster at the national, regional orcitylevelvariesfromoneActtoanother.However,whatfollowsthedeclarationiscommontoallActs

Box 3.11: hIghlIghTs of The UnDP sTUDy

of besT PRAcTIces

• Most national level disaster management organisations have a dual structure: a high-level council of ministerial representatives and an administrative/management wing with professionals. In many countries, the council is chaired by the President/Prime Minister; in some by a Minister.

• Usually the disaster management organisation is affiliated to a ministry – mostly Interior/home/Defence.

• Almost all the Acts have a provision for the declaration of a disaster.

• In almost all the countries the responsibility of disaster response rests with the local and provincial governments. The role of the national government is supportive or supplementary.

• Many countries have provisions for encouraging volunteerism in disaster mitigation and response by institutionalising a system for registering volunteers.

37


inthatittriggerspost-disasterresponse,bothreliefandrescue,followedbyreconstruction.

3.4.5 MostActslaydownthatmunicipalbodiesandlocalgovernmentsareresponsiblefordisastermanagementactivitieswithintheirjurisdiction:

• Some Acts have made explicit provisionsregarding joint disaster management plans forareas of vulnerability falling in more than onemunicipalgovernmentorprovincialgovernment.

• Countries such as Thailand and Bolivia haveintroducedaspecialprovisionandfocusintheirActstodealwiththeissuesandchallengesposedbymegacities.

3.4.6Anotherimportantareaistolearnlessonsinresponse:

• In almost all countries, the responsibilityfor disaster response rests with the local andprovincialgovernments.

• Theroleofnationalgovernments is supportiveor supplementary. Hence they do not have alarge number of full-fledged response teamsat the national level, with the exception ofFEMA. The FEMA type of set-up warrantssetting up regional offices for horizontal andverticallinkageswiththeStatesandthefederalgovernment.

3.4.7 For a country with a federal character likeIndia,therearemorelessons:

• Countries with a strong federal structure havetriedtoprovidemorepowerstotheregionalandlocal governments by decentralising functionsandresponsibilitiesasinthecaseofSouthAfrica.Representationprovidedforprovincial/regionalgovernmentsandcities/municipalbodiesinthenational level agency is an attempt to further

strengthenthefederalset-up.

• Many countries have also provided regionalgovernments with the power to enact disastermanagement laws based on their regionalrequirements and contexts, provided they areconsistentwiththeapproachandphilosophyofthenationalframeworkandnationallegislation.

• A sound democratic approach adopted by SriLankatoincludetheLeaderoftheOppositionand other five members from the oppositionparty in thenationalbody isanexampleofanattempttowardsconsensualapproachtodisastermanagement.

3.4.8 Muchthoughthasbeengiventomakingdisasterlegislationsinclusiveandflexible:

• Manycountrieshaveprovisionsforencouragingvolunteerismindisastermitigationandresponsebyinstitutionalisingasystemofvolunteers.

• The sunset clause provided in many of theActs for revising risk assessments or disastermanagementplansoreventorevisittheActandmake amendments shows that the respectivecountrieshavegraspedthatthelegalframeworkneeds to be dynamic enough to respond toevolvingsituations;itcannotbecastinstone.

3.4.9 Disaster management laws should gobeyondspellingoutthedutiesandresponsibilitiesofthestateanddifferentorgansofthegovernmenttoclearlyspelloutthedutiesofotherstakeholdersaswell,particularlycitizensandcommunities:

• Actsofseveralcountries,forexampleIndonesiaand Japan,notonlyempowerpeoplebygivingrights, but also indicate their duties andresponsibilitiestocontributetheireffortsatthetimeofacalamity.

• Receivingrelieffromthestateintheaftermathofdisastersandcompensationfor thedamages

38


suffered has been made a right of affectedcitizensinmanycountries,bringinginarights-basedapproachtodisastermanagement.

3.4.10 An overarching law that governs allaspectsofdisastermanagementisnotfoundinanycountry:

• Many countries have different legislations todealwithcivilemergenciesanddisasters.Somecountries have many laws to deal with variousaspectsofdisastermanagement.Themainfocusof such disaster management legislation is todealwithemergencies.

• HencetheDMActdoesnotreplacethevariouslegislations that can help to prevent, mitigateand respond to disasters, but supplements theexistinglegalframeworks.

3.4.11 Another critical area where internationalexperience can help is regarding the ‘all hazards’approach:

• The question here is whether an ‘all hazardsapproach’ should include terrorism and civilstrife and other such situations in disastermanagement. While the emergency responseaspect for terrorism related disasters may havesome similarity with natural and other man-madedisasters such as industrial and chemicaldisasters,thepreventionandmitigationaspectsdiffer. International experience shows that thiskindofa‘onesizefitsall’approachmaynotbeappropriate.

3.4.12 Thereisaschoolofthoughtthatadisastermanagement Act should be concise and thatit should deal with the bare essentials, leavingthe details to be framed as part of the rules andregulations.However,thisviewisnotborneoutbythereview:

• ManycountriesincludingtheUS,JapanandNewZealandtonameafew,havedetailedlegislationscoveringallaspectsofdisastermanagement.Inmanycases,thiselementofdetailinghasbroughtmoreclaritytoenablebetterperformance.

• The evolution of various disaster managementlaws across countries shows that governmentsare increasingly focusing on disaster riskreduction and mitigation, moving away fromthetraditionalpost-disasterreliefandresponseparadigm.

• Punishments for offences under the legalframeworkareincreasinglybecomingharshersoastohaveadeterrenteffect,whichisseenfromthe penal provisions provided in the recentlyenacted law of Thailand and the Philippines.Misuse of aid, misappropriation of aid andfalse claims of losses experienced at the timeofdisasters inmany countrieshave resulted inprovisionsofthisnature.

• Disaster management legislation across theglobe has been a continuous effort to addressemerging challenges in disaster management.Attemptshavebeenmadetoprovideaworkableframeworkandinstitutionalarrangementfornotonlyrespondingtodisastersbutalsotopreventandmitigatedisasters.

39

4.1. IntroductionThe DM Act, 2005, provides for the setting upof institutional structures at the national, stateand district levels. The objective of this chapteristoanalysetheimplementationissuesrelatingtonationallevelinstitutionssuchastheNDMA,theNEC,theNIDM,andtheNDRF.


• brieflydescribesthenationallevelorganisationalstructurefordisastermanagementexistingpriortotheAct

• elaborates the structure and functions of DMinstitutionsasenvisagedbytheAct

• summarisestheviewsandsuggestionsexpressedbyvariousstakeholdersduringconsultationsattheregionalandnationallevels

• provides an overview of the working ofDM institutions and the various constraintsexperienced by them in the course of theimplementation of the DM Act, 2005, asrevealedbythefindingsoftheTaskForce,basedonstudiesandconsultations

SectionII:

• addresses conceptual issues relating toorganisational structures for disastermanagement, in particular deriving from theexperiencesofothercountries

• attempts to identify alternative models for

A Review of the Functioning of National Level Institutions Envisaged by the Disaster Management Act, 2005

4

restructuringthesenationallevelentities

• enumerates the recommendations of theTaskForce

Section i

4.2 Institutional Arrangements Prior to the DM Act, 2005The basic responsibility of managing naturaldisasters – even man-made disasters – is that ofthe state government concerned. The GoI playsasupportiveandenablingrole.Attimesofmajordisasters,theGoIsupportstheStateconcernedintermsofphysical,financial andhuman resources.Post-independence, the Ministry of Agricultureassumed the role of a nodal ministry for themanagement of natural disasters. An AdditionalSecretary in the Department of Agriculture andCooperationwasdesignatedastheCentralReliefCommissioner to function as the coordinatingagencyatthenationallevelfordisastermanagementrelatedactivities.TheNaturalDisasterManagement(NDM) Division of the Ministry of Agriculture,headed by a Joint Secretary, assisted the CentralRelief Commissioner in the performance of his/hertask.

Then there were specific types of disasters forwhichotherMinistriesassumedanodalrole,e.g.,the Ministry of Civil Aviation for air accidents;the Ministry of Railways for rail accidents; the

40


MinistryofEnvironmentandForestsforchemicaldisasters; the Ministry of Health for biologicaldisasters;andtheDepartmentofAtomicEnergyintheeventofanucleardisaster.

4.2.1 Attheapexoperationallevel,theNationalCrisisManagementCommittee(NCMC)headedbytheCabinetSecretary,withSecretariesoftherelevantDepartmentsandSecretarytothePrimeMinisterasMembers,coordinatesandguidesthework of the Departments of the GoI at a timeof crisis. ACrisisManagementGroup (CMG)headed by the Central Relief Commissionermeetsfromtimetotimeduringnaturalcalamitiestocoordinateat thecentral level and liaisewithstategovernmentsandotheragenciesforresponseand relief activities. Its members include seniorofficers fromseveralMinistries suchasFinance,Defence, Food, Civil Supplies, Railways, Power,UrbanDevelopment,RuralDevelopment,Health,Petroleum, Women and Child Development,CommunicationandTransport;italsocomprisesthe Director General, Indian MeteorologicalDepartment (IMD), the Director General(Civil Defence), representatives of the CabinetSecretariat as well as the Prime Minister’sOffice (PMO) and the Planning Commission,respectively. Resident Commissioners of Statesaffectedbyamajornaturalcalamityarebroughton board the CMG during the period of crisis.Further,aHighLevelCommittee(HLC)headedby the Union Agriculture/Home Ministerand comprising other Ministers, including theFinance Minister and the Deputy Chairman,PlanningCommission,takesdecisionsregardingfinancial assistance to States in the context ofnatural calamities. The HLC takes decisionsafter considering the recommendations of theInter-Ministerial group (IMG) headed by theAgriculture Secretary/Home Secretary whichconsidersthereportoftheCentralTeam’svisittotheStateconcerned.

AccordingtotheChemicalAccidents(EmergencyPlanning,PreparednessandResponse)Rules,1996,framed under the Environment (Protection) Act,1986, the GoI has to constitute a Central CrisisGroup(CCG)thechairmanshipoftheSecretary,Ministry of Environment and Forests, for themanagementofchemicalaccidents.

Box 4.1: nATIonAl level InsTITUTIons

PRIoR To The DM AcT, 2005

• Post-independence, the Ministry of Agriculture assumed the role of a nodal ministry for disaster management; since 2002 the MhA has performed the role of a nodal ministry for disaster management at the level of the goI.

• Ministries such as civil Aviation, Railways, environment and forests, health, and Atomic energy function as nodal ministries for specific types of disasters.

• The Ministry of Agriculture, which continues to be the nodal ministry for drought, pest attack, cold wave, frost and hailstorm, has an Additional secretary designated as central Relief commissioner.

• The ncMc, headed by the cabinet secretary, coordinates and guides the work of various Ministries and Departments of the goI during a crisis. A crisis Management group headed by the central Relief commissioner coordinates at the central level and liaises with state governments and other agencies at the time of crisis.

• The central crisis group under the chairpersonship of the secretary, Ministry of environment and forests, has been constituted for the management of chemical accidents.

• The hlc, chaired by the Union Agriculture/home Minister, takes decisions on financial assistance to states in the event of natural calamities, based on the recommendations of the Inter-Ministerial group headed by the Agriculture / home secretary.

41


4.2.2 After the Gujarat earthquake of 2001,a decision was taken to transfer the subjectof disaster management from the Ministryof Agriculture to the MHA. By a February2002 amendment to the Government of India(Allocation of Business) Rules, 1961, all workrelating to disaster management (excludingdrought and epidemic and the aforementionedemergencies/disasters specifically allotted toother ministries) was transferred to the MHA.The actual transfer of work took place in June2002. The Ministry of Agriculture continues toremaininchargeofmanagingeventsrelatedtotheincidenceofdrought,pestattack,coldwave,frostandhailstorm.TheMinistrycontinuestohaveanAdditionalSecretarydesignatedasCentralReliefCommissioner.IntheMHA,theDMDivisionisheadedbyaJointSecretarywhoisassistedbythreeDirectors. The Secretary (Border Management)supervisestheworkoftheDMDivision.

4.2.3 Asmentionedearlier,theHPCconstitutedby the GoI in 1999 recommended the creationof a separate Ministry of Disaster Management.It also recommended a National Council onDisasterManagement.EvenasitconsideredtheHPC’s recommendations, the GoI advised StateGovernmentstoeithersetupanewDepartmentofDisasterManagementorre-designatetheexistingdepartment looking after disaster managementas Department of Disaster Management. At thecentral level, the idea of setting up a NationalEmergency Management Authority (NEMA)to coordinate allmeasures relating toprevention,mitigation, preparedness, response and reliefwas contemplated. Proposed to be headed by anofficer of the rank of Secretary/Special SecretaryintheMHAunderthesupervisionoftheHomeSecretary,itwastohavethefollowingasMembers:Special Secretaries/Additional Secretaries fromthe Ministries/Departments of Health, WaterResources,EnvironmentandForests,Agriculture,

Railways, Atomic Energy, Chemicals, Scienceand Technology, Telecommunications, Defence,Urban Development and Poverty Alleviation,Rural Development, the Defence Research andDevelopment Organisation (DRDO); DirectorGeneral(EmergencyResponseandCivilDefence),andtheIMD.Eventually,adecisionwastakentoset up the NDMA under the Chairpersonshipof the Prime Minister. Probably the idea was tocreateanautonomousorganisationsimilartothatofFEMAintheUSA. Inpractice,however, theNDMA is markedly different from FEMA intermsofitsfunctions,reachandtasksassigned;thelatterhasanelaboratefieldlevelorganisationanditimplementsvariousprogrammesandschemestosupportandstrengthenstateandlocallevelactionsandinitiatives.

4.3 Institutional Structures Envisaged by the DM Act, 2005The DM Act, 2005, envisaged four importantinstitutional structures at the national level fordisaster management: the National DisasterManagement Authority, the National ExecutiveCommittee, the National Institute of DisasterManagementandtheNationalDisasterResponseForce. The Act lays down their structures, roles,responsibilitiesandfunctions.Inaddition,theActenumeratesthemeasurestobeundertakenbytheMHAandotherMinistriesoftheGoI.Inotherwords,theMinistries,too,aremandatedbytheActto undertake certain activities relating to disastermanagement.Thefollowingsub-sectionsdescribeimportantaspectsofthenationallevelinstitutions.

4.3.1 The National Disaster Management Authority

Section3oftheDMAct,2005,providesforthesetting up of a National Disaster ManagementAuthority with the Prime Minister of India asChairpersonandothermembers–tobenominated

42


by the Prime Minster – not exceeding nine.TheChairpersonmaydesignateoneofthemembersasVice-Chairperson.

• TheNDMAwasinitiallyconstitutedonMay30,2005,by an executiveorderwhen theDisasterManagementBill,2005,waspendingenactment.ThiswasintheaftermathoftheDecember2004Asian tsunami. Following the enactment ofthe DM Act, 2005, the NDMA was formallyconstitutedinaccordancewithSection3(1)oftheDMActonSeptember27,2006.Atpresentthe NDMA has nine members nominated bythePrimeMinister.TheorganisationalstructurecomprisesaSecretaryandfiveJointSecretariesincludingoneFinancialAdvisor.

• There are 10 posts of Joint Advisors andDirectors, 14 Assistant Advisors, UnderSecretaries and Assistant FinancialAdvisors along with support staff.Therearealsoconsultants.

4.3.1.1 The NDMA has been mandated to laydown policies, plans and guidelines for disaster

management to ensure a timely and effectiveresponsetodisasters.AccordingtoSection6(1)oftheAct,someofthefunctionsoftheNDMAareto:

• laydownpoliciesondisastermanagement

• approvetheNationalPlan

• approve plans prepared by the Ministries orDepartments of the Government of India inaccordancewiththeNationalPlan

• laydownguidelinestobefollowedbytheStateAuthoritiesindrawinguptheStatePlan

• lay down guidelines to be followed by thedifferent Ministries or Departments of theGovernment of India for the purpose ofintegrating the measures for prevention ofdisasteror themitigationof its effects in theirdevelopmentplansandprojects

• coordinatetheenforcementandimplementationofthepolicyandplanfordisastermanagement

• recommendprovisionof funds for thepurposeofmitigation

• providesuchsupporttoothercountriesaffectedbymajordisastersasmaybedeterminedbytheCentralGovernment

• take such other measures for the preventionof disaster, or the mitigation, or preparednessand capacity building for dealing with thethreatening disaster situation or disaster as itmayconsidernecessary

• laydownbroadpolicies andguidelines for thefunctioningoftheNationalInstituteofDisasterManagement

4.3.2 National Executive Committee

The NEC, constituted to assist the NDMA intheperformanceofitsfunctions,isheadedbytheHomeSecretaryasitsChairperson,ex- officio.TheNEC’sMemberscomprisetheUnionSecretariesof

Box 4.2: nATIonAl level InsTITUTIonAl

sTRUcTURe envIsAgeD by The DM AcT, 2005

• The four important entities created under the Act are: the nDMA, the nec, the nIDM and the nDRf. The Act lays down their structures, roles, responsibilities and functions.

• The Act also enumerates the functions of the MhA and other Ministries of the goI for the purpose of managing disasters.

• In fact, the Act mandates that every Ministry or Department of the goI has a responsibility to take measures for disaster management.

• The fact that entities created prior to the DM Act, 2005, continue to exist alongside the institutions created by the Act, has complicated the scenario and introduced much confusion.

43


theMinistriesorDepartmentswithadministrativecontrolofAgriculture,Atomic Energy,Defence,DrinkingWaterSupply,EnvironmentandForests,Finance (Expenditure), Health, Power, RuralDevelopment, Science and Technology, Space,Telecommunication, Urban Development andWaterResources.TheChiefofIntegratedDefenceStaffoftheChiefsofStaffCommittee isalsoanex-officio Member of the NEC.The ChairpersonoftheNECcancalluponanyotherofficeroftheCentralGovernmentorStateGovernmenttotakepartinanymeeting.TheNECmayconstituteoneormoresub-committeesfortheefficientdischargeofitsfunctions.

4.3.2.1According to Section 10 (1) of the Act,theNEChastwobroadfunctions.ItisrequiredtoassisttheNDMAinthedischargeofitsfunctionsand implement its policies and plans as well asensurethecomplianceofdirections issuedbytheCentral Government for the purpose of disastermanagement in the country. More specifically,Section10(2)oftheActenumeratesthefollowingfunctionsoftheNEC,whichareto:

• actasthecoordinatingandmonitoringbodyfordisastermanagement

• preparetheNationalPlantobeapprovedbytheNationalAuthority

• coordinateandmonitor the implementationoftheNationalPolicy

• lay down guidelines for preparing disastermanagement plans by different Ministries orDepartments of the Government of India andtheStateAuthorities

• provide necessary technical assistance to theState Governments and the State Authoritiesfor preparing their disaster management plansinaccordancewiththeguidelineslaiddownbytheNationalAuthority

• monitor the implementation of the National

PlanandtheplanspreparedbytheMinistriesorDepartmentsoftheGovernmentofIndia

• monitortheimplementationoftheguidelineslaiddownbytheNationalAuthorityforintegratingof measures for prevention of disasters andmitigationbytheMinistriesorDepartmentsintheirdevelopmentplansandprojects

• monitor,coordinateandgivedirectionsregardingthemitigationandpreparednessmeasurestobetaken by different Ministries or DepartmentsandagenciesoftheGovernment

• evaluate the preparedness at all governmentallevels for the purpose of responding to anythreatening disaster situation or disaster andgive direction, where necessary, for enhancingsuchpreparedness

• plan and coordinate specialised trainingprogrammefordisastermanagementfordifferentlevelsofofficers,employeesandvoluntaryrescueworkers

• coordinate response in the event of anythreateningdisastersituationordisaster

• lay down guidelines for, or give directions to,theconcernedMinistriesorDepartmentsoftheGovernment of India, the State GovernmentsandtheStateAuthoritiesregardingmeasurestobetakenbytheminresponsetoanythreateningdisastersituationordisaster

• require any department or agency of theGovernmenttomakeavailabletotheNationalAuthority or State Authorities such men ormaterialresourcesasareavailablewithitforthepurposeofemergencyresponse,rescueandrelief

• advise,assistandcoordinatetheactivitiesoftheMinistriesorDepartmentsof theGovernmentof India, State Authorities, statutory bodies,other governmental or non-governmentalorganisations and others engaged in disastermanagement

44


• provide necessary technical assistance or giveadvice to the State Authorities and DistrictAuthorities for carrying out their functionsunderthisAct

• promote general education and awareness inrelationtodisastermanagement

• perform such other functions as the NationalAuthoritymayrequireittoperform

4.3.3. National Institute of Disaster Management

Section 42 provides for the establishment of theNIDM,itsstructureandfunctions.Asmentionedearlier,aNationalCentreforDisasterManagementwas established at the Indian Institute of PublicAdministration (IIPA) in 1995. It was upgradedanddesignatedastheNationalInstituteofDisasterManagement on October 16, 2003. The NIDMattained the status of a statutory organization inpursuanceoftheDMAct,2005.

4.3.3.1 As per Section 42 (8) of the Act, theNIDM’s brief is to function within the broadpoliciesandguidelineslaiddownbytheNDMA.Itisresponsibleforplanningandpromotingtrainingand research in the areaofdisastermanagement,documentationanddevelopmentofanationallevelinformationbaserelatingtodisastermanagementpolicies, prevention mechanisms and mitigationmeasures.Section42(9)oftheActenumeratesthefollowingspecificfunctionsoftheNIDM,whichisto:

• develop training modules, undertake researchanddocumentationindisastermanagementandorganisetrainingprogrammes

• formulate and implement a comprehensivehuman resourcedevelopmentplan covering allaspectsofdisastermanagement

• provide assistance in national level policyformulation

• provide required assistance to the training andresearch institutes for development of trainingand research programmes for stakeholdersincluding Government functionaries andundertake training of faculty members of theStateleveltraininginstitutes

• provide assistance to the State GovernmentsandStatetraininginstitutesintheformulationof State level policies, strategies, disastermanagementframeworkandanyotherassistanceas may be required by the State GovernmentsorStatetraininginstitutesforcapacity-buildingof stakeholders, Government including itsfunctionaries, civil society members, corporatesectorandpeople’selectedrepresentatives

• develop educational materials for disastermanagement including academic andprofessionalcourses

• promote awareness among stakeholdersincludingcollegeorschoolteachersandstudents,technical personnel and others associated withmulti-hazard mitigation, preparedness andresponsemeasures

• undertake,organiseandfacilitatestudycourses,conferences,lectures,seminarswithandoutsidethecountrytopromotetheaforesaidobjects

• undertakeandprovideforpublicationofjournals,research papers and books and establish andmaintainlibrariesinfurtheranceoftheaforesaidobjects

• doallsuchotherlawfulthingsasareconduciveor incidental to the attainment of the aboveobjects

• undertakeanyotherfunctionsasmaybeassignedtoitbytheCentralGovernment

4.3.4 National Disaster Response Force

Section 44 (1) of the Act provides for theconstitution of a National Disaster Response

45


Forceforthepurposeofspecialistresponsetoanimpendingdisastersituationorintheaftermathofadisaster.AccordingtoSection45oftheAct,thegeneral superintendence, direction and control oftheForceisvestedinandexercisedbytheNDMA.The Director General of the NDRF is to beappointedbytheCentralGovernment.

4.3.4.1 AnimportanthighlightofSection44(1)oftheActisthattheNDRFismeanttoprovidea ‘specialist response’. In the event of a disaster,responsefunctionsareperformednotonlybythecommunity but also by the police, central armedpolice forces and armed forces. The experienceof disasters in recent times brought forth therealisationthatsearchandrescueactivitiesrequirespecialised equipment, training and capabilitywhichmaynotbeavailableatalltimesevenwiththe existing forces. The objective of the NDRF,therefore, is to develop specialised skills andcapabilitiesforrescueoperations.

4.3.4.2TheinitialconstitutionoftheNDRFwasaccomplished by an up-gradation/conversion ofeightbattalionsofthecentralarmedpoliceforces–twobattalionseachfromtheBorderSecurityForce(BSF), the Indo-Tibetan Border Police (ITBP),theCentralIndustrialSecurityForce(CISF),andthe Central Reserve Police Force (CRPF). Thepurposewastodevelopthemasaspecialistforce.Atpresent,theNDRFcomprises10battalions.

4.3.5 Roles, Responsibilities and Functions of Ministries of the Government of India

An important aspect of the DM Act, 2005, isthat it specifically mentions the responsibilitiesand functions of the Ministries of the GoI.Section 35(2) enumerates the responsibilitiesof the Central Government. The expression‘Central Government’ is defined in Section 2 (c)as the Ministry or Department of the GoI with

administrativecontrolofDisasterManagement.Inotherwords,theMHAismandatedbytheActtoperformthefollowingfunctions.

• coordination of actions of the Ministries orDepartments of the Government of India,State Governments, National Authority,State Authorities, governmental and non-governmental organisations in relation todisastermanagement

• ensuretheintegrationofmeasuresforpreventionof disasters and mitigation by Ministries orDepartmentsof theGovernmentof India intotheirdevelopmentplansandprojects

• ensure appropriate allocation of funds forprevention of disaster, mitigation, capacity-buildingandpreparednessbytheMinistriesorDepartmentsoftheGovernmentofIndia

• ensure that Ministries or Departments of theGovernment of India take necessary measuresfor preparedness to promptly and effectivelyrespondtoanythreateningdisastersituationordisaster;

• cooperationandassistancetoStateGovernments,as requested by them or otherwise deemedappropriatebyit

• deployment of naval, military and air forces,other armed forces of the Union or any othercivilian personnel as may be required for thepurposeofthisAct

• coordinationwiththeUnitedNationsagencies,internationalorganisationsandgovernmentsofforeigncountriesforthepurposesofthisAct

• establish institutions for research, traininganddevelopmental programmes in thefieldofdisastermanagement

• such other matters as it deems necessary orexpedient for the purpose of securing effectiveimplementationoftheprovisionsofthisAct

46


4.3.5.1Section37mandates that everyMinistryor Department of the GoI shall prepare aDisasterManagementPlanspecifyingtheaspectsmentionedinthatsection.Thesamesectionalsoenvisages that every Ministry or Department ofthe GoI shall make provisions for the financingofactivitiesspecifiedinitsDisasterManagementPlan.

4.4 Views and Suggestions of Stakeholders during the Regional and National ConsultationsThe Task Force held a number of consultationsatregionalandnationallevels.Alargenumberofstakeholders tookactivepart in theseworkshops:SeniorofficersfromthegovernmentsofStates/UTs,Ministries of the GoI, civil society organisationsand NGOs, international organisations as wellas entities such as the NDMA and the NIDM,respectively.Theworkshopswereorganisedwiththeanticipationthatconsultationswithalargecross-section of individuals from diverse organisationsand essaying a varietyof roleswould throwup abroad range of views, and that is exactly whathappened. Interestingly, the discussions revealedasignificantconvergence–inthesenseofsimilarviews–onamajorityofissues,thoughtherewerewidelydifferingviewsonsomeissues.Thissegmentof the chapter attempts to briefly describe andenumeratetheviewsandsuggestionsthatemergedduring the various consultations, particularlythoserelatedtonationallevelinstitutionssuchastheNDMA,theNEC,theNIDMaswellastheNDRF.Someoftheimportantquestionsthatwereaddressedareasfollows:

• Does theAct assignadequate functions to theNDMA as regards the disaster managementsystem of the country? Does the Act confercorresponding powers and authority upon theNDMAtocarryoutthosefunctions?

• HastheActresulted inacleardemarcationofroles and responsibilitiesbetween theNDMA,the MHA and the state governments withregardtodisastermanagement?

• Have the guidelines issued on various aspectsof disaster management as per the Act playedthe part of enabling factors in strengtheningpreparedness,mitigationandresponsecapacities?

• DoestheNECcarryoutthefunctionsassignedtoitbytheAct?

• Is there anoverlapbetween theNECand theNCMCchairedbytheCabinetSecretary?

• Has the NIDM been able to support andstrengthentrainingandcapacitybuildingneedsrelatingtodisastermanagementinthecountry?

• HowactivehastheNDRFbeeninrespondingtodisasters?

• Is there any scope for the improvement of itsorganisationalstructure?

4.4.1 Some stakeholders were of the opinionthattheDMAct,2005,hasprovidedaneffectiveandenablingframeworkfordisastermanagementin the country and encouraged a comprehensiveand holistic approach with a greater focus onprevention,mitigationandpreparednessactivities.A fewof themvoiced the view that theActhasbeen prepared well, and that there is not muchscopeforfurtherimprovement.Also,itistooearlytothinkofamendingtheAct.Ontheotherhand,most of the stakeholders were of the view thattheActneedscomprehensivechangesinordertoaddress problems of implementation to make itmoreeffective.

4.4.2 National Disaster Management Authority

As regards the NDMA’s role and functions, afew stakeholders mentioned that the NDMAhas played a significant role in guiding and

47


inspiringStatesaswellasCentralMinistriesandorganisations to expand their activities relatedto disaster management, and to adopt a holisticapproach. The guidelines issued by the NDMAcover several disasters and a range of activitiesthat are expected tobeundertakenby theStatesandotheragencies.ThustheguidelinesserveasavaluablesourceofinformationandknowledgeforSDMAsandotheragencies.ThosewhoheldthisviewalsofeltthattheNDMAneedstobefurtherstrengthenedandgivenagreaterroleinallaspectsofdisastermanagement.TherepresentativesoftwoStateswent to theextentof suggestingthateventheresponsefunctionshouldbetransferredtotheNDMA.Incontrast,mostofthestakeholderswereoftheviewthatthereisaneedforcomprehensivechange in the structure, composition, role andfunctionsoftheNDMA.

4.4.2.1 Some stakeholders underlined theambiguityintheroleandfunctionsoftheNDMAand emphasised the need for greater clarity onits roles and responsibilities. According to thisviewpoint,thereisaneedtogivetheNDMAmoreautonomyanddecision-makingpowersinadditiontoitsadvisoryfunctionssothatitisabletoenforceand implement policies and plans relating todisastermanagementeffectively.

4.4.2.2 The perspective from some States is thatin the present context the word ‘authority’ ismisleading, for the NDMA’s role is advisory innature.HenceitshouldberenamedastheNationalDisasterManagementAgencyandideallyfunctionasanadvisoryandnotanexecutivebody,withtheprimary role of supporting the government inpolicymakingandplanning.

4.4.2.3.The multiplicity of organisations dealingwith disaster management activities, such as theMHA,otherMinistriesandtheNDMA,warrantsclearly defined roles and responsibilities so as toavoid overlaps and increase their efficiency. It

was feltby some that theNDMAshouldnotbeassigned the function of disaster response, whichshould be handled by the MHA at the nationallevelincoordinationwithotherMinistries.AstheMHA is primarily responsible for coordinatingresponseatthenationallevel,afewStatesexpressedtheviewthattheNDRFcouldbeunderthedirectsupervisionandcontroloftheMHA.Manyotherswere of the view that the existing arrangementshouldcontinueasitis.

4.4.2.4 Some States felt that there should be asingle-pointsystemsothataStatecaughtupinadisastersituationneedapproachonlyoneauthorityfor support and coordination.Atpresent there isno clarity on whom to approach – the NDMA,theMHA,orsomeotherMinistry.Accordingtothis viewpoint, there is also aneed to strengthenthecoordinationmechanismbetweentheCentraland State Governments during a post-disastersituation. There could be a position of CentralRelief Commissioner in the MHA, renamed asCentral Disaster Management Commissioner,toplay the role of anodal officer in anydisastersituation.

4.4.2.5 Anothersignificantpointwasraisedduringthe consultations, namely, that the Union HomeMinisterdoesnotfindplaceinthestructureoftheNDMAasperthepresentprovisionsoftheAct.ItwasalsofeltthattheHomeSecretaryshouldhavearoleintheNDMA’sorganisationalarrangements.TherewasalsoaviewthattheSecretary,NDMA,shouldbeamemberoftheNEC.ThisaspectneedstobeaddressedsoastobringsynergybetweenthefunctioningoftheNDMAandtheMHA.

4.4.2.6 Yet another suggestion made duringthe consultations was that the NDMA shouldbe developed into a resource centre and provideknowledge support to various States and otherinstitutions in the field of disaster management.For,providingtechnicalsupporttoStatessoasto

48


enablethemtousetheguidelineslaiddownbytheNDMAinaneffectivemannerisequallyimportant.The Secretary, Department of Agriculture andCooperation, emphasised that theNDMAneedsto adoptmore sophisticated technologies suchasremotesensingfordroughtandfloodmanagementand weather forecasting models for cyclones,amongotherthings.HealsomadeapointthattheNDMAshouldbelesstopheavyandamuchleanerorganisation runbyprofessionals of proven trackrecord.RegardingtheNEChesupportedtheviewthatsincetheNECwouldbevirtuallyredundantin view of the existence of the NCMC headedbytheCabinetSecretary, it shouldbedoneawaywith. The Secretary, Department of Agricultureand Cooperation, further suggested that insteadof SDMAs, it would be better to have zonalofficesof theNDMAequippedwithappropriatespecialistion,dependingonthetypeofdisasterthatazoneisproneto.Further,thattheNDRFshouldalso be available at the zonal level with requisiteexpertise.

4.4.2.7Some stakeholders mentioned that theguidelinesissuedbytheNDMAserveasavaluablesource of information enabling state agencies todischarge their responsibilities more effectively.Butotherswereoftheopinionthattheguidelinesare voluminous and difficult to implement atthe stateand local level. It isnecessary tohaveamechanismfor implementationof theguidelines.TheNDMA,atpresent,isnotequippedtoensureimplementation of the guidelines. It should havethe statutory power, technical skills and financialresources to ensure implementation of theguidelines by providing technical and financialsupporttoStatesforthispurpose.

4.4.2.8 There were several suggestions regardingthe structure of the NDMA. Some stakeholdersfelt that the number of Members prescribed intheAct shouldbe reducedandalso that theActshould specify selection criteria including tenure,

upper age limit and qualification/background forappointmentasaMember.Also,Membersshouldbe selected through an objective and transparentprocess. A view seeking adequate representationofStatesintheNDMAwasalsoexpressed.SomeStates suggested that in addition to experts, theNDMAshouldincludesomeUnionMinistersoftherelevantMinistriessuchasAgriculture,Health,Urban Development and Rural Development asMembers.ThisimpliesthatmostoftheMemberswould be Members, ex-officio, not full-time as atpresent. The NDMA’s own suggestion was infavour of continuing with full-time Membersand a structure similar to that of the PlanningCommission.

4.4.3 National Executive Committee

Many stakeholders pointed out that the creationof the NEC has added one more committee tothedisastermanagementsystem.ItsroleoverlapsnotonlywithothercommitteesbutalsowiththeNDMA,eventhoughtheNEC’sbriefistoassisttheNDMAinitsfunctions.

4.4.3.1.With regard to the functioning of theNEC and the NCMC, several suggestions wereput forward. It was generally agreed that thefunctions of the NEC and the NCMC overlapconsiderably. One of the solutions put forthwas that these two committees could be mergedinto a single committee headed by the CabinetSecretary with a newly prescribed structure andfunction. But someparticipants felt that as theNECandtheNCMChavedifferentrolestoplay,itmightnotbeeasytomergethetwoCommittees.Hencethereshouldbeamechanismforeffectivecoordination between the two committees. Itwas further suggested that if the NEC were tobe retained, then the Cabinet Secretary shouldbe the Chairperson, with the Secretary (BorderManagement)asMemberSecretary.TheSecretary,NDMA,shouldbe includedasaMemberof the

49


NEC.Infact,opinionfromtheNDMAsuggestedthatitsSecretaryshouldbetheMemberSecretaryof the NEC. The Department of Expenditure(Ministry of Finance) suggested that the NECshouldbemadeleanerforbetterfunctioningand,if required, should constitute sub-committees tohandle specific disaster situations or to plan fordisastermitigationmeasures.

4.4.3.2 A reading of Sections 6(2) and 10(2) oftheDMAct,2005, reveals that theNDMAandthe NEC do have overlapping functions. Theseprovisions need to be revisited. Further, Section10(2)(k) empowers the NEC to coordinateresponse, whereas Section 10(2) (m) involves theNDMAinthecoordinationofresponse,givingtheimpression that theNDMA is also to undertakedisasterresponseactivities.

4.4.3.3 Both the HLC and the IMG, existingmechanisms at the central level whose existencepredatestheAct,donotfindanymention intheDMAct,2005.Yettheycontinuetoplayacrucialrole in decisions regarding central assistance toStatesfordisasterrelief.Thereisaneedtorevisitthe role of existing committees vis-à-vis thoseprovided in the DM Act, 2005, so as to reduceoverlappingoffunctions.

4.4.3.4 Also,meetingsoftheNEChavebeenveryrare.Itshouldmeetatleastonceinaquarter.Incasetheneedarises,itshouldmeetmoreoften.

4.4.4 National Institute of Disaster Management

AsregardstheNIDM,someStateswereoftheviewthattheActshouldprovidefortheestablishmentofaStateInstituteofDisasterManagement.ThesmallerStates/UTsinparticularwereoftheviewthat the NIDM should set up regional branchessoastocatertotheneedsofsuchregions.SomeStates felt that there was no need to make any

provisionintheActandthatitshouldbefortheStatetodecidewhethertohaveaseparatedisastermanagement institute or a centre for disastermanagement within the State AdministrativeTrainingInstitute(ATI).

4.4.4.1 In the course of an interaction, therepresentatives of the NIDM suggested that theinstitutionneededgreaterautonomyandflexibilityin its work and that it should not have to seekNDMA’s approval in its day-to-day activities.TherepresentativesfeltthattheNIDMshouldbeempowered to create posts and recruit personnelfordischargingitsmandatedfunctionseffectively.

4.4.4.2 On theotherhand, theNDMApointedoutthattheNIDMhasnotbeenabletoachievetheobjectivesenvisagedbytherelevantprovisionsoftheAct,andithasnotbeenabletodeveloptherequisite documentation and information base.Moreover,theviewoftheNDMAwasthatSection42(1)oftheActshouldbeamendedtomaketheNIDMthecapacitybuildingarmoftheNDMA.

4.4.4.3 Section42(9)(k)providesthattheNIDMshallundertakeanyotherfunctionasassignedbythe Central Government. There was a view thatthisprovisionmaybedeleted.Thesameobjectivescouldbeachievedthroughexecutiveinstructions.

4.4.5 National Disaster Response Force

A number of points that emerged during theconsultations regarding the NDRF related tooperationalissuessuchasthelocationofitsunitsand deployment. There were a few suggestionswhichrelatetoprovisionsoftheAct.

4.4.5.1 Some States suggested that the ActshouldprovideforthecreationofaStateDisasterResponseForce (SDRF) in linewith theNDRFat the national level. Many of them felt that thestate level force should be under the supervisionof the SDMA and should be raised on the lines

50


of the NDRF. Some small States/UTs suggestedthatsmallerunitsofNDRFshouldbedeployedatvariousplaces.Furthermore,itwasunderlinedthatinviewoffinancialconstraintsfacedbytheStates,the Central Government should provide initialfundstosetupSDRFsintheirrespectiveregions.SomeotherStatesfeltthatitwasnotnecessarytoincorporate such a provision in theAct and thatthe decision to create such a force at the statelevel should be left to the discretion of the stategovernments.EvenwithoutalegalprovisionsomeStateshavealreadycreatedSDRFs.

4.4.5.2 SomeStatespointedoutthattheNDRFshouldnotbe split intovery smallunits,becausethat would dilute its structure and spread itsresources too thin thereby making it ineffective.A case was made for existing state level forcesto be used effectively in disaster response. Anideawasmooted to includegroups such asCivilDefencevolunteersandtheHomeGuardsaswellas the state level Indian Reserve Battalion withthe SDRF. In addition, suggestions were madetobroadenthefunctionsoftheSDRFtoincludethe dissemination of information and knowledgeto people, building and managing personnel andinstitutional resources and undertaking mock-drillstomanagedisasters,amongothers.

4.4.5.3 In view of the fact that the responsefunction is discharged by the MHA, with theNDMA not having much of a role in it, somestakeholderssuggestedthattheNDRFshouldbeplaced under the supervision and control of theMHA. For this purpose, Section 45 of the Actshouldbeamendedaccordingly.

4.4.5.4 ItwasstronglyrepresentedbytheNDMAthat the DM Act, 2005, clearly distinguishesbetween‘generalresponse’and‘specialistresponse’.The point made by the NDMA was that theNEChasbeengiventheresponsibilityofgeneralresponsewhereasthetaskofspecialistresponsehasbeen assigned to the NDRF by placing it under

thegeneralsuperintendence,directionandcontrolof the NDMA. Further, that the NDMA hassuccessfullydischargedtheresponsibilityassignedtoitunderSection45oftheActbyintroducingtheconcept of ‘proactive deployment’ of the NDRFwhich has been a success story of the NDMA.SoallactivitiesoftheNDRFrelatedtospecialistresponseshouldcontinuewiththeNDMA.

4.5 An Overview of the Working of National Level InstitutionsInthissegmentofthechapteranattempthasbeenmade to analyse the performance of the aboveinstitutionsbasedontheinformationcollectedbytheTask Force as well as the views expressed byparticipantsduringconsultations.

4.5.1 The NDMA was set up as the mostimportant organisational entity at the nationallevel for the purpose of putting in place aneffective system of disaster management. In theseven years since its inception the NDMA hashad some achievements to its credit. About 17guidelines have been issued on subjects rangingfrom earthquakes and cyclones to chemical andbiologicaldisasters.TheNDRFhasbeendeployedseveral times for search and rescue operations indisasteraffectedareasofthecountry–beitheavyfloodsortheSikkimearthquakeof2011.However,much more needs to be done, particularly in thematterofimplementingthemandategiventoitbytheAct.

4.5.1.1 InthecontextoftheAct’sprovisionsandtheirimplementation,somebasicquestionsarise:

• IstheNDMAonlyforpreparingguidelinesandgivingadvice,ordoesithavetogetthingsdone,too?

• IstheNDMAmerelyathink-tankwithoutanyroleinimplementation?

• Doesithaveanyroleindisasterresponse?

51


4.5.1.2 A reading of Section 6 of the Act –important functions of the NDMA are listedin para 4.3.1.1 of this chapter – indicates thatthe NDMA is not merely a think tank. Its roleis not only to lay down guidelines and approveplanspreparedby theMinistriesorDepartmentsof the GoI; it is mandated to “coordinate theenforcement and implementation of the policyand plan for disaster management”. Hence theNDMA’sperformanceneedstobelookedatfromthis perspective. The perception among manystakeholders is that the NDMA has not beenable to ensure implementation of even its ownguidelines. This may be due to several factors –lackoflegalauthority,financialconstraintsorevendearthofexpertise.TheroleoftheNECiscrucialinthisconnection.TheNECisrequiredtoassistthe NDMA in the performance of its functions

undertheAct.Animportantquestioniswhetherthe NEC has functioned effectively and fulfilledthemandateoftheAct.Thiswillbediscussedlaterinthischapter.

4.5.1.3 The issue of whether at all the NDMAhasaroleindisasterresponsehasbeenextensivelydebated. Most Ministries of the GoI and mostStatesandUTsfeelthattheNDMAhasnoroleindisasterresponse, thougha fewof themareoftheviewthat it shouldhavesomerole toplay init.Acareful readingof theAct’sprovisions leadsto the conclusion that there is an ambiguity inthisrespect.Section6(2)(i)givestheimpressionthat the NDMA has to take measures at thetime of a threatening disaster situation. Section6 (3) empowers the NDMA Chairperson toexercise all its powers in case of an emergency.More importantly, Section 10 (2) (m) requiresGovernment Departments and agencies to makeavailable to theNDMAorSDMAsuchmenormaterial resources as are available with them forthe purposes of emergency response, rescue andrelief.All these indicate that theNDMAhas, aspertheprovisionsoftheAct,someroleindisasterresponse.Ontheotherhand,itistheNECwhichhas the primary responsibility of response as theprovisionsoftheActclearlyspecify.ThusthereissomeambiguityandconfusiononthisissuewhichneedstobeaddressedbytheTaskForce.

4.5.1.4 During the consultations, severalparticipantspointedoutthattheNDMA’sstructure,as it exists, isnotappropriate for the tasks ithasbeen mandated to perform under the DM Act,2005.ItseemsthattheNDMAhasattemptedtofollow the Planning Commission’s organisationalstructure. The NDMA’s functions are totallydifferentfromthoseofthePlanningCommission.Further,eventhoughtheActprovidesforuptonineMembers,itisneithermandatednornecessarytohavesomanyMembers.Severalparticipantsatthe

Box 4.3: vIews of sTAkeholDeRs DURIng

consUlTATIons

• Though the nDMA has certain achievements to its credit, e.g., issue of useful guidelines, its existing structure is not appropriate for the tasks it has been mandated to perform under the Act.

• There is a need to redesign the nDMA’s structure, ensuring greater objectivity and transparency in selecting Members.

• The nec, which has been assigned crucial and multifarious activities under the Act, has failed to perform its tasks.

• There is a lack of functional integration between the nDMA and the nec on the one hand, and the nDMA and the MhA on the other.

• even the Ministries/Departments of the goI, including the MhA, have not been able to fulfill the mandates given to them by the DM Act, 2005.

• The nIDM has not been able to fulfill the expectations of states and UTs.

• The nDRf appears to be a success story.

52


discussionssuggestedthatthenumberofMembersshould be reduced and also that their selectionprocess should be accomplished in a transparentand objective manner so as to include people ofeminencewithadepthofdomainknowledge.Forthat reason it would be worthwhile to prescribeselectioncriteria includingqualifications,ageandtenureofMembers.

4.5.2 The NEC has been assigned crucial andmultifarious activities under the DM Act, 2005.According to Section 10, and as enumerated inPara 4.3.2 of this chapter, the NEC’s functionsrange from the preparation of a NationalDisaster Management Plan, monitoring theimplementation of the National Plan as wellas plans of various Ministries, and laying downguidelines for disaster response. Further, Section35 of the Act enumerates the responsibilities ofthe Central Government, i.e., the MHA. Theseresponsibilities include coordinating the actionsoftheMinistriesoftheGoI,StateGovernments,the NDMA, and NGOs as regards disastermanagement,ensuringanintegrationofmeasuresfordisastermitigationwiththedevelopmentplansand projects of Ministries/Departments of theGoIandensuringappropriateallocationoffundsfordisastermitigation,preparednessandcapacitybuilding.

4.5.2.1 In practice, however, not much hasbeen accomplished regarding the above aspects.There is a lack of clarity regarding the powersand responsibilities of the NDMA vis-`a-vis theMHA.Thereisalsoalackoffunctionalintegrationbetween the NDMA and the NEC which ischaired by the Union Home Secretary. EventhoughtheNEC’sroleistoassisttheNDMAintheperformanceofitsfunctionsundertheAct,itwas borne out during the consultations that theNEChashardlyevermetinthesevenyearsofitsexistence.Infact,theNECmetafterseveralyearswhenitcametogetherforaconsultationwiththe

Task Force.The structure of the NEC, which isjust a committee, isnot appropriate for the tasksassignedtoitbytheAct.Ifasecretariatiscreatedfor theNECtoenable it toperformitsassignedtasks,assuggestedbysome,yetanotherlayerwouldbe added to the organisational structure, furtheradding to the ambiguity and confusion. Further,at the time of a crisis or a threatening disastersituation,itistheNCMCheadedbytheCabinetSecretary which takes over; the NEC becomesredundant.

4.5.2.2 A note furnished by the NDMA duringtheconsultationhighlightsthefollowingconcerns:

• National Plan: Section 11 of the Disaster Management Act, 2005, provides for the preparation of the National Disaster Management Plan for the whole of the country. It is to be prepared by the National Executive Committee (NEC). MHA has issued OMs (Office Memorandum) structuring the National Plan into three parts viz. National Response Plan, National Capacity Building Plan and National Mitigation Plan for taking ahead the initiative. However, it is yet to be finalised.

• Disaster Management Plan of Ministries or Departments of the Government of India: - Section 37 of the DM Act, 2005, makes it mandatory for every ministry or department of the Government of India to prepare a disaster management plan in accordance with the National Plan. As the National Plan is yet to be finalised the DM Plans of Ministry /Departments also could not be finalised.

• NDMA has released 17 guidelines on different disaster management subjects in pursuance of Section 6(2) (d) and 6 (2)(e) of the DM Act, 2005. But the guidelines are not fully implemented till date. As per Section 10 (2) (g) monitoring implementation of guidelines laid down by the National Authority falls within the domain of NEC. As there is no supporting mechanism in respect of individual Ministries /Departments in the implementation

53


of these guidelines, there have been no tangible measures taken in this regard.

• Section 35 (2) (b) and Section 38 (2) (e) of the DM Act, ,2005, provide that Central and State Governments have to ensure integration of measures for prevention of disasters and mitigation by Ministries or Departments of the Government of India and State Governments into their development plans and projects respectively. But mitigation elements and disaster risk reduction elements are not factored into developmental Plans and Projects so far. The prevention and preparedness aspects have not received adequate attention.

• Response:- Keeping in view the provisions on response measures under Section 10 (2)(k), 35(2)(d),22(2)(g), 38(2) (j), it has to be clearly laid down that response lies generally within the domain of Central/State Governments. The role of NDMA at Central level and SDMA at State level would be in the areas of Prevention, Preparedness and Mitigation, and specialised response is in the domain of NDRF.

• Allocation of funds by Ministries and Departments: - Section 49 of the DM Act, 2005, seeks to enjoin upon every Ministry or Department of the Government of India and State Governments to make provisions of funds in its annual budget for the purpose of carrying out the activities or programmes set out in its disaster management plan. So far this has not been complied with by any Ministry or Department of Government of India and State Governments.

• Grants from 13th Finance Commission:- The 13th F.C, has recommended grants to States for capacity building of administrative machinery, developing hazard, risk and vulnerability analysis, preparation of disaster management plans and strengthening of EOCs in the States as also to the local bodies for revamping of fire services. Effective monitoring as regards utilisation of these grants is required to be done by NEC/National Authority.

• Community Based Disaster Management:- Community based Disaster Management is the stated approach under the National Policy on DM. However, this needs to be put under legal framework to develop institutional mechanism for community capacity building for Disaster Risk Reduction. For instance, there has to be:-

– Support under programmes of the Govt for community efforts

– Strengthening civil defence

– Providing for voluntary efforts

– Using Corporate Social Responsibility provisions

• Maintenance of emergency services by Urban Bodies:- The provisions for adequate fire services and ensuring compliance of fire safety laws and rules, safe transport, adherence to rules governing health and sanitation and water pollution by urban bodies need to be incorporated in the Act.

4.5.2.3 The institutional structure for disastermanagement at the national level seems to bein a state of transition. The structure envisagedby the DM Act, 2005, is still evolving. Boththe old structure and the new one co-exist atpresent. Organisational arrangements such asthe NCMC, the IMG and the HLC not onlyexist but also continue to function as before.Thenewstructures suchas theNDMAandtheNEC are yet to stabilise. For example, it is theHLCwhichtakesafinaldecisiononassistancetoStates from theNCCF/NDRFbasedon IMG’srecommendations. The NDMA has no role inthisasinmanyothermatters.Itcannotsubstitutethe HLC which comprises the senior-mostMinistersof theUnionCabinet.Hence there isaneed tohavemoreclarityon thismatter.OnecouldconsiderprovidingfortheNCMCandtheHLC,amongothers,intheAct,articulatingtheirroles and responsibilities clearly. Alternatively,the NEC’s functions could be assigned to the

54


NCMC. If so, aquestionwill arisewhether theNCMCwouldbeabletoperformallthefunctionsenumeratedinSection10oftheAct.Thisaspectwillbediscussedlaterinthischapter.

4.5.3 The NIDM has a schedule of varioustraining programmes round the year. TheseprogrammesareconductedatitspremisesaswellasatthestatelevelwiththesupportofStatesandDM cells in ATIs. The NIDM further interactswith DM cells to prepare an annual state leveltrainingschedule.ItwasfeltbymanyStatesthatthetrainingneedsofalargecountrylikeIndiacannotbeadequatelymetthroughonenational institute,particularlyinviewofthelimitedroletheNIDMhas played since its inception. The contributionof the NIDM in supporting and strengtheningState ATIs seems to have been inadequate andineffective.

4.5.3.1 SomeStatesfeltthattheNIDMhasnotbeenabletoprovidetherequisitemodules,manualsandtoolkitsonvarioussubjects.Ithasnotbeenableto focus or cater to the regional needs of States.CapacitybuildingaspirationsandthedevelopmentofrequisitedocumentationasmandatedbytheActhavenotbeenachieved.Exceptforthedevelopmentof a disaster management plan template and theregular trainings as per NIDM’s annual trainingcalendar,theassistancereceivedbytheStatesfromtheNIDMhasbeennegligible.

4.5.3.2 It appears that the NIDM, even afterattainingthestatusofastatutoryorganisation,hasnotbeenabletofulfillthemandateoftheActortheexpectationsofStatesandotherstakeholders.The Act provides for a governing body and ageneral body for NIDM’s effective functioning.The NDMA is expected to give broad policiesandguidelines.Itisworthanalysingtheoutcomeof the policies and guidelines of the NDMA, ifany, in regard to the functioning of the NIDM.TheNIDMfunctionsas awingof theMHA.It

doesnotexercisetheautonomyandindependenceconferred on it by the Act. If the suggestion ofthe NDMA, that the NIDM should becomeits capacity building arm is accepted, it wouldraise the issue of whether the NIDM wouldhave the autonomy and flexibility to set its ownpriorities to achieve the objectives envisaged bythe Act, or it would be further constrained. Inrecent times, educational institutions such asthe Indraprastha University, Delhi, and PunjabUniversity have started professional courses ondisaster management. There will be many moresuchinitiatives.TheNIDMneedstohaveavisionforthefutureandtheabilitytorealiseit.

4.5.4 TheNDRF seems tohavebeen themostvisiblefaceoftheNDMAinrecentyears.ThoughtheNDMAhasundertakenvariousactivitiessuchas issuing guidelines, the NDRF’s deploymentduring recent disasters seems to have raised theprofileoftheNDMAandmadeitrelevant.Withina fewyearsa forcewithspecialisedskillshasbeendeveloped.AccordingtotheNDMA,theNDRFhasbeena‘successstory’becauseofcapacitybuilding,‘proactive deployment’ and quick response in theeventofdisasters.ProbablythiswasmadepossiblebecauseoffocusedattentiononthedevelopmentoftheNDRFandidentificationofitstrainingneeds.During its interactions with the Task Force, theNDMAhighlightedsomeoftheconstraintswhich,invariably,areadministrativeinnature.

4.5.4.1 ThoughSection45oftheActprovidesthatthegeneralsuperintendence,directionandcontrolof theNDRFshallbevested inandexercisedbytheNDMA,evenherethereisadualityofcontrolowingtothefactthattheDirectorGeneraloftheNDRFreportstotheMHA.

4.5.4.2 Therearealsoissuesrelatingtothesanctionof posts, deputation allowance, and authorisationtorequisitioncivilaircraftasincaseoftheNSGaswellasthetenureofNDRFpersonnel.

55


Section ii

4.6 Identifying Alternatives to Improve upon the Act’s Existing Provisions and Formulating Recommendations The Task Force received numerous suggestionsfromstakeholdersregardingimprovementsintheprovisionsoftheDMAct,2005.Somesuggestionswerebasedonexperienceandsomeonperception,while others were based on studies undertaken.There were divergent perceptions, views andsuggestions.This isboundtohappenbecause thestakeholders themselves have different roles andfunctions in disaster management activities. Forexample,theNDMA’sperceptioncoulddifferfromthatoftheMHA.Civilsocietymembers,too,havetheirownperspectives.Further,inalargecountrylike India, States and UTs with varied socio-economicandgeographical featuresareboundtohave different needs, ideas and perceptions. TheTaskForceattemptedtoconsolidatethisvastbodyoffeedbackandsuggestions.Basedontheanalysisofthesesuggestionsandotherinformation,afewalternativeproposals regarding the structures andfunctions of the NDMA, the NEC, the NIDMand the NDRF were formulated and presentedat the national consultation held on October 12,2012, at the Vigyan Bhawan, New Delhi. TheparticipantswererequestedtodiscussnotonlythedetailspresentedbytheTaskForcebutalsosuggestotheralternatives,ifany.

NationalDisasterManagementAuthority

4.6.1 The most important aspect is the onerelatingtotheNDMAandtheNEC.IthasbeenpointedoutrepeatedlythateventhoughtheMHAis in charge of disaster management in the GoI,theUnionHomeMinisterandtheUnionHomeSecretaryhavenoroleintheorganisationalstructure

of theNDMA.Anotherpointraisedduringtheinteractions was that the Prime Minister, who istheChairpersonoftheNDMA,maynotbeabletodevoteadequatetimeandattentiontoitsactivitiesand hence the Union Home Minister could bemadeeitherChairpersonorCo-Chairperson.Thebasicissuethatemergesisthis–whereshouldtheNDMAbelocated.

4.6.1.1 Some aspects of the organisationalstructureofdifferentcountrieshavebeendescribedinChapter3.UNDP’scountrystudiesonthelegalandinstitutionalstructuresfordisastermanagementarealsoreadyathand.Aperusalofthesecountrystudies reveals that inamajorityofcountries theresponsibilitiesofdisastermanagementhavebeenconcentrated in one lead agency or authorityand integratedwith a lineMinistry, typically theMHA/ Interior/Police. In some countries suchagenciesareintegratedwithotherlineMinistries,suchasofWaterResources,Environment,ForeignAffairs, Local Government and Decentralisation,andSocialWelfare,amongothers.TheobjectiveofthiskindofalinkagetoalineMinistryistoensuresynergies between the disaster management leadagencyandthesectorscoveredbytheMinistryaswellasotherwingsofgovernment.However,suchlinkagesdonotalwaysleadtotheexpectedcross-sectorsynergies.Further,someoftheseMinistriesareaccordedalowerprioritywithrespecttofundsascomparedtoMinistriesofInteriorandDefence.

4.6.1.2 There is anotheraspect to it also.Severalcountries have a dual structure of national leveldisaster management comprising a NationalDisaster Management Council to provideauthority and ministerial coordination and aNationalDisasterManagementOffice (NDMO)to implement disaster preparedness, mitigation,andinsomecasesresponsemeasures.TheNationalCouncil typically comprises representatives fromdifferentMinistriesandDepartments–evenfromNGOsandtheprivatesector.Thepurposeofthe

56


Council is to involve, integrate and coordinatethe inputs of different organisations in order toprovideacomprehensiveandsystematicapproachtodisastermanagement.TheNDMOusuallyactsastheexecutivearmoftheNationalCouncil.Ithasprofessionalmanagersandstaff.TheNDMOmayormaynotberesponsibleforoperations.

4.6.1.3 The location of the NDMO has majorimplications for coordination across Ministries.If theNDMO is located in aMinistry, then theMinister is likely to be the Chairperson of theNationalCouncil.IftheNDMOislocatedinthePrimeMinister’sOfficethenthePrimeMinisterisusuallytheChairpersonoftheCouncil.

4.6.1.4 The provisions of the DM Act, 2005,envisage a structure at the national level whichis different from the typical model illustrated

in the aboveparagraphs.Forone, theNDMA isheaded by the Prime Minister, but is located inthe MHA. The Union Home Minister and theUnion Home Secretary are not directly linkedto the organisational structure, though they havea role in thematters of theNDMAbecause theMHA is the administrative Ministry. Secondly,the executive armof theNDMA, theNEC, is acommittee. The NDMA has a full-time Vice-Chairperson and Members, whereas the NEC,whichisexpectedtoprepareplans,monitorarangeof activities and undertake disaster response, hasnosecretariatorprofessionalstaff.Itisabsolutelynecessarytorectifythisanomaly.

4.6.2 Before recommending the requiredamendmentstotheDMAct,2005,itisimportanttobecertainaboutthestructure,roleandfunctionsof the NDMA. Keeping in view the discussionsandanalysesintheprevioussections,thefollowingalternativestructuresfortheNDMA–participantswere encouraged to suggest other alternatives aswell–werepresentedat the timeof thenationalconsultation:

a.Continue with the NDMA in its presentstructureandaspertheexistingprovisionsoftheAct

b.DiscontinueorwinduptheNDMAandcreateaseparateMinistryofDisasterManagementoraDepartmentofDisasterManagementwithintheMHA

c. RevampthestructureoftheNDMAasfollows:

• Make all Members part-time, with theMinisters of the relevant Ministries suchas Home, Defence, Agriculture, UrbanDevelopment, Water Resources and Health,etc., as Members, ex-officio. Two or threeeminent experts could be included as part-time Members; representatives of StateGovernmentsatthelevelofChiefMinister/

Box 4.4: A fRAMewoRk of nATIonAl level

DM sTRUcTURes In oTheR coUnTRIes

• Most countries have a dual structure of national level disaster management comprising a national Disaster Management council to provide authority and ministerial coordination, and a national Disaster Management office (nDMo) to implement disaster preparedness, mitigation, and in some cases response measures.

• The national council typically includes representatives from Ministries and Departments – even from ngos and the private sector. The purpose is to involve, integrate and coordinate the inputs of various organisations for a comprehensive approach to disaster management.

• The nDMo acts as an executive arm of the national council. It has professional managers and staff.

• The nDMo is affiliated to a Ministry or located in the Prime Minister’s office.

57


Ministercouldalsobeincludedbyrotation

• the Secretariat of the NDMA should beheaded by a CEO or Director Generalcomprisingsuitableprofessionalstaffwithaspecialisationinvariousdisciplines

d.RetainthepresentstructureoftheNDMAwithsomemodifications:

• thenumberofMembers,includingtheVice-Chairperson,maybereducedtothreeorfour,withonlydomainexpertsbeingnominatedtotheNDMA

• thequalification, tenureandage limitof theMembers need to be specified as in otherActs such as those relating to Electricity,the Election Commission and the NationalHumanRightsCommission

• the selection of Members of the NDMAshould be made through an open andtransparentprocess

4.6.2.1 As regards the NDMA’s functions, thefollowingthreealternativeswerepresented:

a.TheNDMAshouldhaveaclearlydefinedroledistinguishable from that of the MHA andotheragencies:

• itshouldbeapolicy-makingbodyresponsibleforplanning,regulationsandadvocacy

• its role should essentially be technical andadvisoryinnature

b.TheNDMA’sroleandfunctionsshouldcoverpolicies,plans,guidelinesandregulationsrelatedtoprevention,mitigationandpreparedness:

• It should coordinate all activities related toprevention,mitigationandpreparedness.Thisincludescoordinatingtheimplementationofpoliciesandguidelines

• its role should be clearly defined anddistinguishablefromthatoftheMHA

c. All the responsibilities relating to disastermanagement, including response, should begiventotheNDMA:

• theNDMAshouldbestrengthenedfurtherbyprovidingmorehumanresources,powersandresourcesforenforcementandimplementationofpolicies,plansandguidelines

4.6.2.2 During the national consultation,participants,asexpected,expresseddivergentviewsonboththestructureandfunctionsoftheNDMA.Whileoneparticipantwasoftheviewthatitwastoo early to undertake a review of the Act andconsequently the structure and functions of theNDMA,giventhat theDMAct,2005,hasbeeninoperationonlyforafewyears,otherparticipantsfeltthatitwouldbeworthwhiletodoso.MostoftheparticipantsfeltthattherewasaneedtorevisitthestructureandfunctionsoftheNDMA.Someparticipants/Statespreferred the alternative ‘c’ forthe structure, while others chose the alternative‘d’.AsregardsthefunctionsoftheNDMA,afewparticipants were of the view that it should be athinktankandplayonlyanadvisoryrole,withoutany executive and operational responsibility(similartoalternative‘a’).AmajorityofStatesandother participants, however, preferred alternative‘b’with regard to theNDMA’s functions; one ortwo participants were in favour of entrusting alltheresponsibilitiesrelatedtodisastermanagement,includingresponse,totheNDMA.

4.6.2.3 Out of the four alternatives regardingtheNDMA’sstructure, thealternative‘a’basicallymaintainsstatusquoandhasbeenincludedbecausea fewparticipants felt that theAct in itspresentformshouldremain.Theviewsexpressedbymostofthestakeholdersduringtheconsultationsbroadlysuggestthatthereisaneedtomodifytheexistingstructure.Alternative‘b’,whichpreferstheideaofabolishingtheNDMAandcreatingaseparateMinistryorDepartmentofDisasterManagement,

58


isimplicitintheassumptionthattherewouldnolongerbeanyautonomousbodywiththeflexibilityto act for the purpose of disaster management.Thismaynotbeconsistentwiththethinkingandapproach that has emerged in recent years notonly in India but also globally. The experienceof past decades has increasingly given rise toawarenessthatthereisaneedforadedicatedandautonomous organisational entity to undertake arangeofactivitiesregardingdisastermanagement.The HPC had recommended the creation of aseparate Ministry of Disaster Management asthe nodal Ministry in charge of dealing withbothnatural aswell asman-madedisasters. ThefunctionsofsuchaMinistrywouldbenetworkingand coordinationof national resources, while the‘functional’Ministrieswouldcontinuetodischargetheir responsibilities in accordance with theirrespectivedisastermanagementplans.However,theGoIdidnotacceptthisrecommendation.Instead,somethoughtwasgiventotheideaofsettingupa National Emergency Management Authority(NEMA) within the MHA – functioning underthesupervisionoftheHomeSecretary–priortothe decision to create the NDMA. The SecondARCof2008feltthatgiventhemulti-disciplinarynature of activities in crisis management, thecreationofaseparateMinistrywouldonlyleadtomoreconflictanddelay rather thancoordination.Asforthequestionofplanning,research,capacitybuilding and coordination of national resources,theARCfeltthatsuchacoordinationmechanismwasalreadyavailable in the formof theNDMA.Therefore the Commission was not in favour ofthecreationofaseparateMinistryorDepartmentfordisastermanagementeitheratthenationalorstatelevel.Alternatives‘c’and‘d’wouldintroducefundamental changes to the existing structureof the NDMA. The former envisages theparticipation of various Ministries in the policydecisionsoftheNDMAandaprofessionalisedandtechnicalsecretariatoftheNDMAtocoordinate,

enforce and implement its decisions. Alternative‘d’, suggestedbymanyof the stakeholders in thecourseoftheregionalandnationalconsultations,istorestructuretheNDMAinawaythatitisleaner,moreefficientandhasbetterdomainexpertise.

4.6.2.4 ThreealternativeshavebeensuggestedregardingthefunctionsoftheNDMA.Alternative‘a’ envisages that the NDMA would basically bea think tank with an advisory role. Alternatives‘b’and‘c’suggestaproactiverolefortheNDMAwith powers and responsibilities for coordinatingand monitoring the implementation of policies,plansandguidelines.Themaindifferencebetween‘b’and‘c’isintheinclusionofthedisasterresponsefunctioninalternative‘c’.Duringtheregionalandnational consultations,most participants felt thatthe response function should be handled by the

Box 4.5: PeRsPecTIve of The TAsk foRce

on The nDMA

• The nDMA’s creation is the culmination of years of thinking based on national and global trends. It cannot and should not be abandoned simply because there are implementation issues.

• The nDMA should not remain merely a think tank without any link to ground level realities.

• The nDMA’s role and functions should cover policies, plans, guidelines and regulations relating to prevention, mitigation and preparedness. It should coordinate with the agencies concerned so that the activities envisaged by the Act are effectively performed.

• The nDMA needs to be empowered through amendments, if any, to the Act so as to enable it to discharge its responsibilities more effectively.

• At the same time the nDMA should be held accountable for the satisfactory performance of the tasks assigned to it.

• for this purpose it needs to be restructured appropriately.

59


MHA,thoughafewparticipantsdidmentionthattheNDMAshoulddealwithallaspectsofdisastermanagement,includingresponse.

4.6.2.5 Alookatthecountryexperiencesstudiedby theTask Force reveals that organisations liketheNDMAareassignedtheresponsefunctioninsomecountries,butnotinothers.Forinstance,intheUSA,theStates,citiesandtownsareprimarilyresponsiblefordisasterresponse,butwhenaStateisoverwhelmed,orseveralStatesareovercomebyadisaster,FEMAsupports–butdoesnotreplace–thelocalresponse.

FormulatingRecommendationsontheStructureandFunctionstheNDMA

4.6.2.6 An appropriate structure for – orrestructuring of – the NDMA should ideallydependonthefunctionsitismandatedtoperform.ThatwouldmeanoutliningthefunctionsthattheNDMAneedstoperformandthensuggestinganappropriateorganisationalstructure.

4.6.2.6.1 As mentioned earlier, the consultationsthrew up a range of views regarding the roleof the NDMA. On the basis of those ideas andfeedback, three alternatives were identified anddiscussed at the national consultation. A generalview to emergewas that theNDMAshouldnotbe confined to being a think tank with only anadvisory role to play. Limiting its role to that ofa think tank would deprive it of an exposure toissuesof implementationaswell asopportunitiestolearnfromreal-lifeexperiences.Itcouldloseitsrelevanceandbecomeredundant.Butontheotherhand,thesuggestionthattheNDMA’sroleshouldcoverallaspectsofdisastermanagement,includingresponse,wasadvocatedbyveryfewStates.Mostparticipantsfeltthattheresponsefunction,atthenational level, shouldbewiththeMHAthroughthemechanismof theNECor theNCMC.ThepredominantviewwasthattheNDMAshouldhave

aproactive–notmerelyadvisory–roleinmattersof prevention, mitigation and preparedness. TheNDMAshouldberesponsibleforcoordinatingtheenforcementandimplementationofpolicies,plansandguidelines,anditshouldhavethepowersandresourcestobeabletodoso.

4.6.2.6.2 Country experiences indicate that aspecialisedagencycreatedfordisastermanagementplays a proactive role in matters related toprevention,mitigationandpreparedness.Insomecasesitalsoperformsaresponsefunction.Inmostcountries,itsroleismuchmorethanthatofathinktank. In India, as inmanycountries, thecreationofaseparateorganisationfordisastermanagementwas triggered by recent experiences of majordisasters. It was realised that in addition to therelevantdepartmentsofthegovernment,therewasaneedforadedicatedandautonomousbodywhichwould have operational flexibility and a domainknowledgebaseinordertoaddressmedium-termand long-term issues of disaster managementwithoutbeingburdenedbytheimmediate,day-to-daytasks.Suchanagencyshouldnotremainsolelyathinkingorganisationgivingadvicewhilekeepingawayfromreal-lifesituationsandresponsibilities.Unless,ithassomeoperationalresponsibilitysuchas coordination and enforcement, its ideas andadvice would be devoid of realism, making themredundant.Forexample,theNDMAhasprepared17 guidelines, each one containing voluminousinformation, ideas and suggestions. But theguidelines have not been implemented, nor havetheymade any impacton theground.Nodoubt,multiple agencies and organisations are requiredto implement these guidelines. But it is essentialthattheNDMAisgivenaclearmandatetoensuretheimplementationoftheseguidelines.Similarly,theActenvisagesthepreparationofsectoralplansfor disaster management by different Ministries[Section37oftheAct]andaNationalPlanbytheNEC[Section11oftheAct],andtheapprovalofsuchplansbytheNDMA.Theseplansareyetto

60


beprepared.TheNDMAfeelsthatithasnotbeenable to fulfill its task of approving the NationalPlanforthesimplereasonthatsuchaplanhasnotbeenpreparedandsubmittedtoitbytheNEC.TheNEChashardlymetsinceitscreation.TherehasbeennomonitoringofthepreparationofsectoralplansbytheMinistriesbyanyagencyorauthority.It is a strange situation where the NDMA hasneithertheresponsibilitynorthepowertoenforcetheprovisionsoftheAct,northeimplementationof its guidelines. Neither the NEC nor theCentral Government (the MHA) has adequatelyperformedthetasksassignedtothemrespectivelyunderSections10and35oftheAct.

4.6.2.6.3Inviewoftheabove,itisessentialthattheNDMA,whichwascreatedafteryearsofexperiencewithdisasters andcareful considerationof expertviewsandrecommendations,takes–orisgiven–theresponsibilityofcoordinatingtheperformanceofthetasksmandatedbytheAct.Correspondingly,itneedstobeempoweredthroughamendments,ifany,totheprovisionsoftheAct,sothatitisableto discharge its responsibilities and accomplishthe tasks assigned to it. It should also be heldaccountable for the satisfactory performance ofsuchtasks.

4.6.2.6.4TheTask Force is of the view that therole and functions of the NDMA should coverpolicies,plans,guidelinesandregulations relatingto prevention, mitigation and preparedness. Itshould coordinate with the agencies concernedandensurethatallactivitiesrelatingtoprevention,mitigationandpreparednessenvisagedbytheActare performed. This would include coordinatingthe implementation of policies and guidelinesandpreparationofplans.AsdiscussedlaterinthecontextoftheNEC,somefunctionsoftheNECmentionedinSection10oftheAct,whichrequiresustained attention, could be assigned to theNDMA.Thesefunctionsareasfollows:

• PreparationoftheNationalPlan[Section10(2)(b)].

• To monitor, coordinate and give directionsregarding the mitigation and preparednessmeasurestobetakenbydifferentMinistriesorDepartmentsandAgenciesoftheGovernment[Section10(2)(h)].

• To plan and coordinate specialised trainingprogrammes on disaster management fordifferent levels of officers, employees andvoluntaryrescueworkers[10(2)(j)].

This means that the NDMA would have toprepareandapprovetheNationalPlan.Onceitisrestructured,assuggestedbytheTaskForceinthefollowing paragraphs, the Office of the NDMAwouldhavetopreparetheNationalPlanandplaceitbeforetheNationalAuthorityforapproval.Theprocess will be somewhat similar to the processoffinalisationofFive-YearPlansbythePlanningCommission, though the Plans are also placedbeforetheNationalDevelopmentCouncil. IncaseofNDMA, therewouldbeno such requirementof placing the National Plan before NationalDevelopment Council or any other equivalentBody. Section6(2)(b) of theActwill need tobeamendedaccordingly.

4.6.2.6.5IftheNDMAhasamandatetoperformthe above and similar tasks as envisaged by theAct, it should also have the responsibilities, andcorrespondingly the powers, to be able to doso. Needless to say, the NDMA should be heldaccountable for the satisfactory performance ofsuch tasks assigned to it. Further, the NDMAwould have to be equipped with specialisationand professional competence with domainknowledgeindisastermanagement.Inaddition,itwouldhavetohavetheprofileaswellaslinkageswith the highest level of Ministries and othergovernment agencies so that all the departmentsand organisations respond to and respect its

61


initiatives.Otherwise,itwouldnotbepossiblefortheNDMAtobeeffectiveinperformingtheabovetasks.The deficiencies of the present structure ofthe NDMA have been discussed earlier. It is ananomalous situation where a high level group ofMembershas to look to–possiblyhelplessly–acommitteesuchastheNEC,whichrarelymeets,for the implementation and enforcement of itsownguidelinesandideas.Indeed,thereisaneedtoredesignthestructureoftheNDMA.

4.6.2.6.6 The Act provides for nine Membersincluding the Vice-Chairperson of NDMA.Having a large number of functionaries atthe highest level of an organisation can createproblems of coordination and harmony. Duringconsultations, a large number of participantswerecriticaloftheNDMA’ssize,particularlythenumberofMembers,andsuggestedthatitshouldbe reduced.Ofcourse,a fewparticipantswereoftheviewthatthenumberofMemberscanevenbeincreased because disaster management involvesseveral disciplines and specialties. This argumentis based on the premise that the Members ofthe NDMA should possess sound expertise andspecialised knowledge of all disciplines, which isneither workable nor logical. No doubt disastermanagement involves several disciplines; butthat does not mean a top-heavy organisationalstructure. It is the senior functionaries reportingto theMembers inwhomonemust look for theknowledge of specific disciplines. As regards theMembers, rather than a narrow specialisation, itwould be more appropriate to look for domainknowledge and experienceof thebroader aspectsofdisastermanagement,withacertainprofessionalaccomplishmentanddistinctionthatcanraisetheprofileoftheorganisation.Similarcriteriashouldbe specified for those heading functional areasrelatedtospecialiseddisciplines.TheActprovidesfornotmorethannineMembers;itisnotnecessary,evenaccordingtotheextantprovisions,thatthere

have tobenineMembers at all times.Moreover,itisnotstipulatedthatalltheMembersshouldbefull-timeMembers.Butinpractice,theweightofseveralconsiderationsleadstotheappointmentofthe maximum permissible number of Members,resulting in theorganisationperforming ina lessthanoptimummanner.ItwouldbeusefultoamendtheprovisionsoftheActforbetteroutcomes.Thegeneral view which emerged from the feedbackreceived during the consultations is that thereis aneed for a leaner structure, transparency andobjectivity in selecting Members of the NDMA.Itisnotthecasethatthosenominatedundertheexistingprocedurearenottherightchoice.Whatisof significance is that the legal frameworkandthe procedure of selection should be such thatthe stakeholders have greater confidence in andrespectforthesystemthatselectsthepersonstobeassignedsuchimportanttasks.

4.6.2.6.7 As discussed earlier, many countrieshave a dual structure of national disastermanagement, comprising a National DisasterManagement Council to provide authority andministerial coordination and a National DisasterManagement Office to enforce and implementdisasterpreparednessandmitigationmeasures.TheNDMA,whichalreadyhasthePrimeMinisterasitsChairperson, should ideally be restructured inthis fashion.It is important toensure integrationof the NDMA in regular policy-making andgovernance,whilemaintainingitsspecialisedfocus.ItcouldhaveamixedstructurewithkeyCabinetministers as Members, ex-officio, as well as a fewindependent Members who bring substantivedomainknowledge to theorganisation.MinistersoftherelevantMinistries,suchasHome,Defence,Agriculture, Finance, Health, Water resources,UrbanDevelopment andPowermaybe ex-officioMembers.EventheLeaderoftheOppositionintheLokSabhaandtwoChiefMinisters(byrotation)couldbeincluded.TheNDMO,ortheSecretariatof

62


theNDMA,maybeheadedbyaDirectorGeneralorCEOwhowouldalsobetheMemberSecretaryof the National Disaster Management Council/Authority. The NDMO could have four or fiveDirectorswithspecialisedanddomainknowledgein various aspects of disaster management. Theabovestructurewouldnecessitateadrasticchangeinthepresentorganisationalstructure.Henceitisdesirable to have a more realistic and acceptableapproachinthepresentcontext.

4.6.2.6.8 In view of the above analysis, theTaskForcerecommendsthefunctionsandrestructuringoftheNDMAasfollows:

• The role and functions of the NDMAshould cover policies, plans, guidelines andregulations related to prevention, mitigationand preparedness. It should coordinate withthe agencies concerned and ensure that allactivities relating to prevention, mitigationand preparedness envisaged by the Act areperformed. This will include coordinating theimplementation of policies and guidelines aswell as preparation of plans. Coordination ofdisasterresponsefunctionswithStatesandUTswillbedonebytheMHA.

• As discussed later in the context of the NEC,some functions of the NEC mentioned inSection10of theAct,which require sustainedattention,maybe assigned to theNDMA.Theexamplesare:

– Preparation of the National Plan [Section10(2)(b)].

– To monitor, coordinate and give directionsregarding the mitigation and preparednessmeasures tobe takenbydifferentMinistriesor Departments and Agencies of theGovernment[Section10(2)(h)].

– To plan and coordinate specialised trainingprogrammes for disaster management for

different levels of officers, employees andvoluntaryrescueworkers[10(2)(j)].

• The NDMA will have the responsibility ofpreparing and approving the National Plan.Onceitisrestructured,assuggestedbytheTaskForce,theOfficeoftheNDMAwillpreparetheNational Plan and place it before the NationalAuthority for approval. The process will besomewhat similar to the process of finalisationofFive-YearPlansbythePlanningCommission,though the Plans are also placed before theNational Development Council. In case ofNDMA, there would be no such requirementof placing the National Plan before NationalDevelopment Council or any other equivalentBody. Section6(2)(b)oftheActwillneedtobeamendedaccordingly.TheNDMAshouldhavenotmorethanfourfull-timeMembersincludingthe Vice-Chairperson, the other Members– Ministers for Home, Defence, Finance,Agriculture,andUrbanDevelopment–beingex-officio.ThoughtheVice-Chairpersonisthechiefexecutive of the NDMA, one of the full-timeMemberscanbedesignatedaMemberSecretaryso that there is a formal interface/linkagebetween the high-level Council/Authority andtheadministrativewingoftheNDMA.Allfull-timeMemberswould,ofcourse,be involved inbroaderpolicydecisionsofthecouncilandalsoin the executive functions of the organisationconcerningdisastermanagement.

• The full-time Members, including the Vice-Chairperson, will be persons with experience,domainknowledgeandcredibleaccomplishmentsinthefieldofdisastermanagement.

• TheselectionofMembersoftheNDMAshouldbethroughanopenandtransparentprocess.Forthispurpose,aSearchandSelectionCommitteemaybeconstituted.

• The tenure and age limit of Members needto be specified as in other Acts, such as those

63


relating to electricity, Election Commissionand theNationalHumanRightsCommission,amongothers.TheagelimitofMembersoftheCentral Electricity Regulatory Commissionis 65 years and that of the National HumanRightsCommission is 70 years. In case of theCompetitionCommissionofIndia,theagelimitstandsat65years.

• The following provisions may be included inChapterIIoftheAct:

– The National Authority shall consist of the following:-

• the Prime Minister of India, who shall be the Chairperson of the National Authority, ex officio

• the Ministers in charge of the Ministries of the GoI dealing with Home, Defence, Finance, Agriculture and Urban Development as Members, ex-officio

• Not more than four full-time Members, one of whom may be designated by the Chairperson to be the Vice-Chairperson of the National Authority

– The full-time Members of the National Authority shall be persons of ability, integrity and standing who have knowledge of and credible accomplishments in disaster management, science or public policy.

– Full-time Members of the National Authority shall be appointed by the Government of India after obtaining the recommendations of a Committee comprising the Prime Minister (as Chairperson), Speaker of the House of the People, Minister-in-charge of the Ministry of Home Affairs of the Government of India, Leader of the Opposition in the House of the People, Leader of the Opposition in the Council of States and Deputy Chairman of the Council of States.

– A full-time Member shall hold office for a term of

five years from the date s/he enters office; provided that s/he shall not be eligible for re-appointment in the same capacity; provided further that no full-time Member shall hold office as such after s/he has attained the age of sixty-five years.

– The salary, allowances and other terms and conditions of service of the full-time Members shall be such as may be prescribed by the Government of India.

4.6.2.6.9Asmentionedearlier,itistheHLCwhichtakesafinaldecisiononassistancetoStatesfromNCCF/NDRF,basedontherecommendationsofthe IMG. It is headedby theUnionAgriculture

Box 4.6: ResTRUcTURIng of The nDMA

• The nDMA should not have more than four full-time Members including the vice-chairperson; other Members such as Ministers of home Affairs, Defence, finance, Agriculture, Urban Development being ex-officio.

• one of the full-time Members may be designated as Member secretary.

• criteria regarding selection, tenure and other terms and conditions of service of full-time Members may be clearly specified.

• The hlc may be included in the provisions of the DM Act, 2005.

• The nDMA should have the powers to recruit and appoint officers and staff.

• The function of nec envisaged in section 10 (2) – other than clauses (e), (f), (g), (i) and (k) – may be assigned to the nDMA.

• The nec may be discontinued. The ncMc may be included in the DM Act, 2005, and perform tasks as envisaged by section 10 of the Act, in particular those tasks relating to response and coordination.

• The DM Division of the MhA needs to be strengthened so that it can provide secretariat services to the ncMc.

64


Minister and includes the Union Ministers ofHome, Finance and the Deputy Chairman,Planning Commission. At present, the NDMAhasnoroletoplayinthisimportantdecision.WiththerestructuringoftheNDMA,asrecommendedabove,itcanhavealinkageinthesensethatalmostallmembersoftheHLCarealsoMembersoftheNDMA. The Task Force recommends that theHLCmaybeincorporatedintheActinitspresentform. Similarly, the IMG may also find place intheAct.

NationalExecutiveCommittee

4.6.3 As discussed earlier, the NEC which ismandatedtoassisttheNDMAintheperformanceof its functions and has to undertake a widerangeofactivities, includingdisaster response (asenumeratedinSection10oftheAct),hashardlyperformed any of these tasks. It has not beenable to even meet in the last seven years. In theeventofacrisisitistheNCMCwhichtakesover;theNECisnowhereinthepicture. It isneitherequipped nor appropriately structured to be ableto undertake the tasks envisaged by the Act.The following alternatives were presented at thenationalconsultation:

a.The NEC may be abolished and its functionsassignedtotheNCMCwhichshouldfindplaceintheAct.

b.The NEC should continue with the followingfeaturesandfunctions:

• It is essentially an inter-ministerial set-up coordinating and supervising not onlydisasterresponseatthecentrallevel,butalsomonitoringtheimplementationofmitigationandpreparednessmeasures.

• It may have a permanent secretariat, to bemanagedbytheDMDivisionoftheMHA.

• As it has no official reporting line to theNDMA,itmayreporttotheMHAandtheCabinetSecretariat.

• ItwillhavetheresponsibilityforimplementingtheguidelinesoftheNDMA.

c. The NEC may have a permanent secretariatto be managed from outside the MHA and itshouldcontinuetoreporttotheNDMA.

4.6.3.1 Most of the participants at the nationalconsultationsuggestedthattherewasnoneedfortwo committees, i.e., the NCMC and the NEC,bothofwhichcouldbemerged,withtheCabinetSecretaryaschairperson.ItssecretariatcouldbeintheMHA.NecessaryamendmenttotheActmaybeintroduced.

4.6.3.2 Adeeper analysis shows that alternatives‘b’ and ‘c’ will add to the complexity of theorganisationalstructurefordisastermanagementat the national level. Even with a permanentsecretariat it is not certain whether the NECwouldbemoreeffectivethanitistoday,particularlybecause it is just a committee, yet assigned tasksthatarewiderangingandrequiresustainedefforts.As regards alternative ‘a’, the NCMC wouldcertainly be more effective in performing thefunctionsrelatingtodisasterresponseoutofthoseenumeratedinSection10oftheAct.However,thereareotherfunctionsoftheNECsuchaspreparingthe National Plan, laying down guidelines forpreparing disaster management plans by variousMinistries and providing technical assistance toStateAuthorities,whichwouldrequirecontinuousand time-consuming efforts which the NCMCmaynotbe inaposition toperform. AwayoutcouldbetoassigntotheNCMCthosefunctionswhichrequiremonitoringtheactivitiesofvariousMinistries and Departments, based on alreadyavailableplansandguidelines (e.g. section10 (2)(f ),(g),(k)oftheDMAct,2005).Theremaining

65


functions enumerated in the same section of theActcouldgototheNDMA,which,ifrestructured,wouldbebetterequippedtohandlethetask.Therelevant sections of the Act would have to beamended.

4.6.3.3 Formulating Recommendations on theNEC

4.6.3.3.1 The NEC may be discontinued. TheNCMCmaybeincludedintheDMAct,2005.ItmaybesubstitutedfortheNECinSections8,9,10andotherrelevantprovisions.ThecompositionoftheNCMCmaybesimilartothatprovidedinSection8(2)withamodificationtotheeffectthatthe Cabinet Secretary shall be Chairperson andHomeSecretaryaMember.

4.6.3.3.2 Section 10(2) may be modified to theeffectthatthefunctionsoftheNCMCwillbeto:

• Actasthecoordinatingandmonitoringbodyfordisastermanagement.

• Monitor the implementation of the NationalPlanandthePlanspreparedbytheMinistriesorDepartmentsoftheGovernmentofIndia.

• Monitor the implementation of the guidelineslaid down by the National Authority forintegrating the measures for prevention ofdisaster and mitigation by the Ministries orDepartments in their development plans andprojects.

• Evaluate preparedness at all governmentallevels for the purpose of responding to anythreatening disaster situation or disaster andgive directions, where necessary, for enhancingsuchpreparedness.

• Coordinate response in the event of anythreateningdisastersituationordisaster.

• Perform such other functions as the NationalAuthoritymayrequireittoperform.

The above items correspond to those mentionedin Section 10(2)(e), (f ), (g), (i) and (k). Otherfunctions enumerated in Section 10(2) may beassignedtotheNDMA.

4.6.3.3.3 The DM Division of the MHA mayprovidesecretariatservicestotheNCMCforthepurpose of the above activities, in addition to itsown functions. As these activities relate basicallyto response and to some extent also to ensurecompliancebyvariousMinistriesandDepartmentsof the GoI with regard to disaster managementpolicies, plans and guidelines, the DM Divisionshouldbeabletoprovidesecretariatserviceswithsome additional personnel. Instead of numerousactivities–someofwhichrequirecomprehensiveeffortscoveringallaspectsofdisastermanagement–enumerated inSection10(2) for theNEC, theabove items focusondisaster response and somebroad aspectsofmitigation andpreparedness.Soit would also be feasible for the NCMC, eventhough its members have multifarious tasks, toperform the above functions effectively, unliketheNECatpresent.TheCabinetSecretarybeingthe Chairperson and Secretaries to the relevantDepartments being Members, the NCMC willbe able to effectively ensure not only disasterresponsebutalsoimplementationofplans,policiesand guidelines by various Ministries and otheragencies.This will supplement the efforts of andenhance the effectiveness of the NDMA, whichwouldberesponsibleforcoordinatingallaspectsofprevention,mitigationandpreparednessmeasures.

NationalInstituteofDisasterManagement

4.6.4 In case of the NIDM, most of theissues which arose related to administrative andfinancial matters. However, during the regionalconsultations and that with the NDMA, issuesregarding the autonomy of NIDM – whether itshouldbeintegratedwiththeMHAorbecomethecapacitybuildingarmof theNDMA–didarise.

66


The NDMA suggested that the NIDM shouldbecomeitscapacitybuildingarmsothattrainingprogrammes and other activities of the NIDMbecomemorerelevantanduseful.NIDMfeltthatitshouldhavemoreautonomyinitsworkandhavethepowerofrecruitmentofpersonnel.

4.6.4.1 During the national consultation thefollowingtwoalternativeswereconsidered.

a.The NIDM may function under the generalsuperintendence, direction and control of theNDMA.ItshouldactasthecapacitybuildingarmoftheNDMA.

b.The NIDM may have full autonomy andflexibilityasatrainingandresourcecentre.

4.6.4.2 Most of the participants of the nationalconsultationsuggestedalternative‘b’above,i.e.theNIDMshouldhave full autonomyandflexibilityas a training and resource centre. Some Statesalso suggested thatNIDMmayhave its regionalcentres or units for imparting training at thestate level; this would be useful particularly tosmallStatesandUTs.TheNIDMemphasisedonstrengthening state-level training institutes andDMcellsofStateATIstocarryforwardcapacitybuildinginterventionsatthedistrictlevel.Onstatelevel training institutions, one view was that itshould be mentioned in the Act.The other viewwasthatitshouldnotbementionedintheActastheStatescansetup,assomearedoing,theirownsuchinstitutionsevenwithoutanylegalprovision.

4.6.4.3 A general review of the working of theNIDM–andalsotheperceptionsoftheparticipantsofvariousconsultations–indicatesthatithasnotbeenabletoadequatelyperformthetasksassignedtoitbytheActandliveuptotheexpectationsoftheStates and other stakeholders. While interactingwiththeTaskForce,theNIDMrepresentedthatithasnotbeenadequatelystrengthenedwithfaculty,

professionalstaff,infrastructureandothertrainingandresearchfacilities.Itisstillworkingwithstaffstrength created years ago. Most of the peopleworkingwithNIDMhavebeenintheorganisationonanadhocbasis.Theirtermsandconditionsofservice and salaries have not been decided evenafter a decade of their service. Recruitment andservice rules of NIDM are not in place.There isanurgentneedtoenhancethecapacityofNIDMtoenableittoundertakethetasksassignedbytheAct.

TheNIDMalsopointedoutthatitdidnothavethe autonomy and power to recruit personnelessential for its effective functioning. However,this does not seem to be the case if one closelylooksattheprovisionsoftheActandtheRules.In fact, the NIDM – particularly its GeneralBody(Institute)andtheGoverningBodyheadedrespectivelybytheHomeMinisterandtheVice-Chairman, NDMA, under the relevant Rules –are high profile entities.The NIDM could haveimproved its profile, working and performancewiththesupportandsanctionofthesehighlevelentities. There is scope for the NIDM to takegreater initiative and improve its working evenwithintheexistingarrangement.Yet,itwouldbeworthwhiletohavegreaterclarityontheissueofautonomyoftheNIDM.

4.6.4.3.1 It was further presented that as theNIDMhasalsobeendesignatedthenationalfocalpointforthecapacitybuildinginthecountryforthedisastermanagement,itshouldhavesomeorganiclinkages with state level DM institutions. Until2012, NIDM was supporting State governmentsincapacitydevelopmentbysupportingtheCentrefor Disaster Management (CDM) housed invarious state institutions. The scheme has sincebeen discontinued. It would be desirable to haveanappropriatemechanismthroughtheDMAct,2005, toestablishorganic linkagesof theNIDMwithcapacitybuildinginstitutionsofStates.

67


4.6.4.4 Formulating Recommendations on theNIDM

• ItsGoverningBody alreadyhas representationfromtheNDMAandtheMHA.TheActalreadyprovidesthatithastofunctionwithinthebroadpoliciesandguidelineslaiddownbytheNDMA.Hence, it should function autonomously inrespect to its activities and human resourcepracticesandnotasasubordinateorganisationofNDMA/MHAforthefunctionsentrustedtoitbytheAct.

• Section43oftheActstipulatesthat“TheCentralGovernmentshallprovidetheNationalInstituteof Disaster Management with such officers,consultantsandotheremployeesasitconsidersnecessary, for carrying out its function”. Thisprovisionmayhave tobeamendedso that theNIDMdoesnothaveanyproceduralconstraintsinhavingtherequiredhumanresources.ForthispurposeSection43oftheActmaybeamendedasfollows:

– The National Institute of Disaster Management may, with the approval of the Central Government, specify the numbers, nature and categories of officers and employees.

– The salaries and allowances payable to, and other terms and conditions of service of, the officers and other employees shall be such as may be specified with the approval of the Central Government.

– The National Institute of Disaster Management may also appoint consultants on the terms and conditions as may be specified.

• The Act may specify the minimum number ofmeetings that the Institute and its GoverningBodyshouldholdinayear.

• As regards state level disaster managementinstitutesor the creationof regional centresofNIDM,thereisnoneedtomakeanyprovision

intheAct.StatesmaydecidewhethertohaveadisastermanagementcellattheATIortohavea separate instituteofdisastermanagement (asinGujarat)ortohaveanarrangementwiththeNIDMforcapacitybuildingoftheirpersonnel.TheTaskForce,however,wouldliketoemphasisethecriticalroleofcapacitybuildingforeffectivedisaster management and recommend to thestate governments to give priority to creatingstate-level organisational arrangement for thispurpose. Further, NIDM being the nationalfocalpointforcapacitybuildinginthecountryfordisastermanagement,itisimportantthattheNIDMshouldhavesomeorganiclinkageswiththestatelevelDMinstitutions.

National Disaster Response Force

4.6.5 The NDRF, even though created fromexistingcentralarmedpoliceforces,hasdevelopedinto a specialised and highly skilled disasterresponse force. It has successfully been deployedand has several achievements to its credit. Nodoubt,police,centralarmedpoliceforcesandthearmed forces will continue to play an importantrole in search and rescue operations. In a largecountry like India the NDRF, even with thestrengthof10or12battalions,cannotcopewithalltherequirements.Yet,itcanplayacriticalrolefor the purpose of ‘specialist response’. Indeed, ithas been in recent times the only visible face ofNDMAatthetimeofcrisis.

4.6.5.1 Inthelightoftheviews,suggestionsandfeedbackthatemergedduringearlierconsultationsthe following alternatives were considered at thenationalconsultation:

a.NDRF should have two reporting lines asis presently the case: the NDMA and theMHA. NDMA would supervise the capacitybuildingaspectof theNDRFas ithasgeneralsupervision,directionandcontrolof theForce,whiletheMHAcoulddecideitsdeploymentinemergencysituations.

68


b.NDRFwouldreportonlytotheMHA.Whileit could provide training and other capacitybuildingsupport inaccordancewiththeadviceofNDMA,itsoperationalandfunctionalcontrolwouldbeexercisedbytheMHAalone.

c. NDRF would function under the full controlandsupervisionoftheNDMAwhichwouldatthecentral levelhave responsibilities related to‘specialistresponse’todisastersituations.

4.6.5.2 Alterative ‘a’ represents the positionas it is today. A few States wanted the existingarrangement to continue with no change inthe provisions of the Act as NDRF has, in spiteof duality of control, done well in recent times.Alternative ‘b’ means that the NDRF would beentirelyunder thecontrolof theMHA,withtheNDMA having no role. This was suggested bysomeparticipantsduringtheconsultationsontheground that disaster response being handled byMHA,theNDRFshouldbeunderitsfullcontrol.SomeotherStatespreferred alternative ‘c’ on thegroundthattheNDRFshouldreporttoonlyoneauthority.

4.6.5.3 FormulatingRecommendationsontheNDRF

4.6.5.3.1 According to Section 45 of the Act,“The general superintendence, direction andcontroloftheForceshallbevestedandexercisedbytheNationalAuthorityandthecommandandsupervision of the Force shall vest in an officerto be appointed by the Central Government asthe Director General of the National DisasterResponse Force”. This provision clearly definestheroleoftheNDMAwithrespecttotheNDRF– superintendence, direction and control of theNDRF. As the Director General of the NDRFis appointed by the Central Government and isfromacadremanagedbytheMHA,therecouldbeproblemsduetodualityofcontrolthoughitneed

notbeso.ThisismoresoiftheDirectorGeneralisnotexclusivelyfortheNDRFandhasadditionalcharge.Further,inviewofSection5oftheAct,theNDMAhastodependontheCentralGovernmentfor appointmentofofficers andemployees.TherehavebeendifferencesbetweenNDMAandMHAregardingthefillingupofvacanciesofofficersandstaffofNDRFandmattersrelatingtopersonnel.ThustheissuesrelatemoretopracticethantotheprovisionsoftheAct.

4.6.5.3.2TherationaleforcreationoftheNDRF– there are already central armed police forcesandevenarmedforceswhicharedeployedduringdisasters – is that the Act distinguishes between‘generalresponse’and‘specialistresponse’.Section44 says: “There shall be constituted a NationalDisaster Response Force for the purpose ofspecialist response to a threatening disastersituation or disaster”. Such ‘specialist response’is in addition to ‘general response’ and for moredifficult situations.This requires specialised skills,training and resources which necessitate morefocusedandconcertedattentionthattheNDMAis expected and should have the wherewithal toprovide.Further,capacitybuildingasamitigationand preparedness measure is one of the mainfunctions of the NDMA. So it can contributeto improving the capability of the NDRF for‘specialist response’, and more importantly ofStates andcommunities through theNDRF.Therole of NDRF being totally different from thatofcentralarmedpoliceforces–which,thoughattimesundertakesearchandrescuework,primarilyhaveadifferentrole–shouldcontinuetobeunderthegeneralsuperintendence,directionandcontroloftheNDMA.

4.6.5.3.3 As reported by the NDMA, severalStateshavecreatedorareintheprocessofcreatingState Disaster Response Forces in line with theNDRF. The latter is playing a catalytic role inencouraging the creation of and helping in the

69


capacity building of such SDRFs. Further, theNDRF has initiated measures for communitycapacitybuilding.Theseactivitiesareessentialformitigation and preparedness measures which theNDMA ismandated toperform. In viewof thistheNDRFshouldnotbeviewedasoneamongthecentralarmedpoliceforces;itneedstoplayaroledifferentfromthatofotherForces.

4.6.5.3.4Nodoubt, the response function,undertheAct,iswiththeNEC.TheMHAwillcontinueto be responsible for disaster response. In thecontext of a disaster it is MHA and more oftenthe State Government which will decide whereandwhen theNDRF is required tobedeployed.ThefactthattheNDRFisassignedtotheNDMAshouldnotposeanyproblem.ThereareotherForces–e.g.,armedforces–andpersonnel,e.g.,doctorsand Power Grid engineers, who are with variousauthorities but are deployed during emergencysituationsforresponserelatedactivities.

4.6.5.3.5 In view of the above there is no needto amend the existing provisions relating to theNDRFintheDisasterManagementAct,2005.

4.6.5.3.6 The Task Force would like to suggesttwo administrative measures in respect of theNDRF:

• AtpresentNDRFpersonnelcomefromdifferentForcesandgobackafteraspecifiedperiod.Theirskill, experience and expertise developed whileworkingwiththeNDRFmightnotbeavailablefor disaster response after they leave. Some ofthem may be allowed to continue or NDRFmayrecruitsomeofitspersonnelsothatthereiscontinuity and institutionalmemory in respectofsometypesofexpertise.

• ThepresentarrangementofDG,NDRF,havingthedutiesofCivilDefence,HomeGuardsandFire Services can help integrate the disastermanagement activities of these organisations.However, the DG, NDRF and Civil Defence,shouldnotbegivenanyotheradditionaldutiesof any central armed police force and shouldalso have an administrative reporting line tothe NDMA. Ideally, the DG should be undertheadministrativecontroloftheNDMAasanofficerondeputation.

70

5.1 Introduction As stated earlier, the primary responsibility ofundertaking rescue, relief and rehabilitationmeasures in the event of a disaster is that of thestategovernmentconcerned.TheGoIsupplementstheeffortsofthestategovernmentthroughpolicy,financial and logistical support. This chapterreviews the implementation issues relating tostate and district level institutions for disastermanagementinthecontextoftheDMAct,2005.

SectionI:

• describestheorganisationalstructurefordisastermanagementatthestateanddistrictlevelpriortotheDMAct,2005

• describes the structure of such institutions asprovided in the DM Act, 2005, and issues ofimplementation

• enumeratestheviewsexpressedbystakeholders

SectionII:

• discussesthesuggestionsforimprovement

• enumerates the recommendations of the TaskForce

Section i

5.2 Institutional Arrangements Prior to the DM Act, 2005The system of disaster management at the stateanddistrict levelhas evolvedover timeprimarilyin the contextofproblemsofdrought andflood.

A Review of the Functioning of Disaster Management Institutions at State, District and Local Level

5Thefocushasbeenon rescue, relief and to someextent rehabilitation. The nomenclature of keyfunctionaries–e.g.,ReliefCommissioner,DeputyCollector (Scarcity)– isaclear indicationof thisorientation. The Emergency Operations Centres(EOCs)functiononlyduringthemonsoonseasonand go by the nomenclature of Flood ControlRooms,signifyingaverylimitedfocus.

5.2.1 At the state level, matters relating toresponse, relief and rehabilitation are handled bytheRevenueDepartmentwhichhas traditionallysupervisedtheworkofthedistrictadministration.This has been so for historical reasons; the needto collect revenue formed the core aroundwhichall other functions were conceived. In course oftime, the domain of the Revenue Departmentexpandedbeyondlandadministrationtoembraceaspectsofgeneral administrationandsupervisionofdistrictandfieldlevelfunctionaries.Infact,anysubjectwhich isnotwithin thepurviewofotherdepartments of the state government is expectedtobedealtwithbytheRevenueDepartment.Byconvention,theRevenueDepartmenthasbeeninchargeofdisastermanagement,whichwaslimitedto response and rehabilitation. In recent years, afewStateshavecreatedaseparateDepartmentofReliefandRehabilitation,whichalsoincludestherehabilitation of persons displaced by irrigationand other projects. Some States, at the instanceof the GoI, changed the nomenclature of theirDepartment of Relief and Rehabilitation to theDepartmentofDisasterManagement,whilesomeothers created a division of disaster managementwithintheRevenueDepartment.Thereisapostof

71

A Review of the functioning of Disaster Management Institutions at state, District and local level

ReliefCommissionerwhoheadstheDepartment,supervising response and relief activities of thedistricts at the timeof cyclone,drought,floodorother hazard events. In some States, the post isfilleduponlywhensuchasituationarisesandnotonaregularbasis.

5.2.2 The apex level coordination mechanismat the state level is theStateCrisisManagementCommittee (SCMC), which is headed by theChief Secretary. The Committee coordinates alltheactivitiesofresponseandreliefintheeventofa crisis. Prior to the monsoon season every year,the Committee holds a meeting to review thepreparednessofvariousdepartmentsandagenciesattheStateleveltofacetheoccurrenceofdroughtandflood,amongothernaturalcalamities.

5.2.3 There is also a State Crisis ManagementGroup (SCMG) headed by the Chief Secretary,for the management of chemical accidents asprovided in theChemicalAccidents (EmergencyPlanning, Preparedness and Response) Rules,1996. The SCMG comprises Secretaries to theStateGovernmentintheDepartmentsthatareinchargeofLabour,Environment,Health,Industries,

Transport, and Public Health Engineering;Chairman,StatePollutionControlBoard,aswellassomeexperts.

5.2.4 At the district level, which is the mostcrucial level for managing disasters, the DistrictCollectoristhefocalpointformanagingdisastersand is required to interact with district andstate level organisations as well as with centralorganisations. At the timeofdroughtandflood,additionalpostsarecreatedtocopewithresponseand relief activities. At district level, there is aCoordination Committee headed by the DistrictCollector;thisCommitteecomprisesgovernmentand non-government agencies as members. It isanimportantcoordinationmechanismforvariousprogrammes,projectsandactivitiesincludingthoserelatingtodisastermanagement.

5.3 Institutional Structure Envisaged by the DM Act, 2005TheDMAct,2005,provides for theconstitutionofSDMAsatthestate levelandDDMAsatthedistrictlevel.AspertheinformationavailablewiththeMHA, all theStates andUTsof India,withtheexceptionofGujaratandDamanandDiu,haveconstitutedSDMAsundertheDMAct,2005.TheexistingSDMAinGujaratwasconstitutedunderthe Gujarat State Disaster Management Act,2003.DamanandDiu,too,hadestablishedtheirSDMA prior to the enactment of the DM Act.2005.TheActalsoenvisagestheestablishmentofaSECheadedbytheChiefSecretarytotheStateGovernment.

5.3.1 State Disaster Management Authority

Section 14 of the Act provides for the settingup of a State Disaster Management Authoritywith the State Chief Minister as Chairpersonwho, inadditionto theChairpersonof theSEC,nominates Members not exceeding eight. TheChairperson can designate one of the Members

Box 5.1: InsTITUTIonAl ARRAngeMenT

foR DIsAsTeR MAnAgeMenT AT sTATe AnD

DIsTRIcT level PRIoR To The DM AcT, 2005

• Revenue Department/Disaster Management Department/Department of Relief and Rehabilitation.

• state crisis Management committee headed by the chief secretary.

• state crisis Management group headed by the chief secretary for management of chemical accidents.

• commissioner of Relief/Relief commissioner.

• District collector/District Magistrate.

72


to be theVice-Chairperson of the SDMA.Thusthe SDMA’s structure, including the number ofMembers,issimilartotheNDMAatthenationallevel.IncaseofDelhiandotherUnionTerritories,theLt.GovernorortheAdministrator,asthecasemay be, would be Chairperson, SDMA.There isnoprovisionforasituationwhenaStateisunderPresident’sRule.

5.3.1.1.According to Section 18 of the Act, theSDMAisresponsibleforlayingdownpoliciesandplansfordisastermanagementintheState.Section18 (2) enumerates the specific functions of theSDMA,whichisto:

• laydowntheStatedisastermanagementpolicy

• approve theStatePlan in accordancewith theguidelineslaiddownbytheNationalAuthority

• approvethedisastermanagementplanpreparedby the departments of the Government of theState

• lay down guidelines to be followed by thedepartments of the Government of the Statefor thepurposesof integrationofmeasures forprevention of disaster and mitigation in theirdevelopment plans and projects and providenecessarytechnicalassistancetherefor

• coordinatetheimplementationoftheStatePlan

• recommend provision of funds for mitigationandpreparednessmeasures

• review the development plan of the differentdepartments of the State and ensure thatprevention and mitigation measures areintegratedtherein

• reviewthemeasuresbeingtakenformitigation,capacity building and preparedness by thedepartments of the Government of the Stateandissuesuchguidelinesasmaybenecessary

5.3.1.2 TheabovefunctionsofSDMAaresimilar

tothoseoftheNDMAgiveninSection6.However,thereisnoitemsimilarto6(2)(i),whichimpliesthat theSDMAhasno role indisaster response.Ofcourse,Section18(3)providesforpowertobeexercisedbytheChairpersonoftheSDMAincaseofanemergency.Similarly,Section10(2)(m)hasareferenceto‘StateAuthorities’orSDMAs.

5.3.2 State Executive Committee

The SEC is to assist the SDMA in theperformance of its functions and to coordinateaction in accordance with the guidelines laiddownbytheSDMA.Itisalsorequiredtoensurethe compliance of directions issued by the StateGovernment under the Act.The SEC is headedbytheChiefSecretarytotheStateGovernmentasits ex-officioChairperson and fourSecretariesofsuchDepartments as theStateGovernment seesfit. The SEC may constitute one or more sub-committees.

5.3.2.1 The functions of the SEC are vast andmultifarious. They include not only coordinatingresponse but also laying down guidelines,assessment of vulnerability, and promotingcommunity capacity building, among others.AccordingtoSection22(2)oftheAct,theSECisto:

• coordinateandmonitor the implementationoftheNationalPolicy, theNationalPlanandtheStatePlan

• examine the vulnerability of different parts ofthe State to different forms of disasters andspecifymeasurestobetakenfortheirpreventionormitigation

• laydownguidelines forpreparationofdisastermanagement plans by the departments ofthe Government of the State and the DistrictAuthorities

• monitor the implementation of the disaster

73


managementplanspreparedbythedepartmentsoftheGovernmentoftheStateandtheDistrictAuthorities

• monitor the implementation of theguidelineslaiddownbytheStateAuthorityforintegratingof measures for prevention of disasters andmitigation by the departments in theirdevelopmentplansandprojects

• evaluate preparedness at all governmental ornon-governmental levels to respond to anythreatening disaster situation or disaster andgive directions, where necessary, for enhancingsuchpreparedness

• coordinate response in the event of anythreateningdisastersituationordisaster

• give directions to any Department of theGovernmentofStateoranyotherauthorityorbodyintheStateregardingactionstobetakeninresponsetoanythreateningdisastersituationordisaster

• promote general education, awareness andcommunity training in regard to the formsofdisasterstowhichdifferentpartsoftheStatearevulnerableandthemeasuresthatmaybetakenby such community to prevent the disaster,mitigateandrespondtosuchdisaster

• advise, assist and coordinate the activities ofthe Departments of the Government of theState, District Authorities, statutory bodiesandothergovernmentalandnon-governmentalorganisationsengagedindisastermanagement;

• provide necessary technical assistance orgive advice to District Authorities and localauthorities for carrying out their functionseffectively

• advise the State Government regarding allfinancial matters in relation to disastermanagement

• examinetheconstruction,inanylocalareaintheStateand,ifitisoftheopinionthatthestandardslaidforsuchconstructionforthepreventionofdisasterisnotbeingorhasnotbeenfollowed,maydirect theDistrictAuthority or the localauthority,asthecasemaybetotakesuchactionasmaybenecessarytosecurecomplianceofsuchstandards

• provide information to theNationalAuthorityrelating to different aspects of disastermanagement

• laydown,reviewandupdateStatelevelresponseplansandguidelinesandensurethatthedistrictlevelplansareprepared,reviewedandupdated;

• ensurethatcommunicationsystemsareinorderand the disaster management drills are carriedoutperiodically

• performsuchotherfunctionsasmaybeassignedtoitbytheStateAuthorityorasitmayconsidernecessary

5.3.2.2 At the time of a crisis or threateningdisaster situation, it becomes necessary for thefunctionariesinchargeofresponsetohavepowerstocontrolandrestrictvehiculartraffic,restricttheentry of persons in affected areas, remove debris,demolish unsafe structures and disseminateinformation to the general public regarding theimpendingdisastersituation.AccordingtoSection24,allsuchpowersarevestedintheSEC.

5.3.3 District Disaster Management Authority

ChapterIVoftheDisasterManagementAct,2005,dwellsontheconstitution,powersandfunctionsofthe District Disaster Management Authority. ItalsoincludesthescopeandpreparationofDistrictDisasterManagementPlan.

5.3.3.1 According to Section 25 (2), the

74


DDMA consists of the District Collector orDistrict Magistrate as Chairperson and theelected representative of the Local Authority asCo-Chairperson. Other members include theSuperintendent of Police, the Chief MedicalOfficer, two other district level officers to beappointed by the State Government and theCEOoftheDDMA,whoisanofficeroftherankof Additional Collector or Additional DistrictMagistrate.

5.3.3.2 TheDDMAismeanttoactasthedistrictplanning,coordinatingandimplementingbodyfordisastermanagement.IthastotakeallmeasuresforthepurposeofdisastermanagementinthedistrictinaccordancewiththeguidelineslaiddownbytheNDMA and the SDMA. Section 30 (2) whichcontains28itemsenumeratesthefunctionsoftheDDMA.Thefunctionscoverallaspectsofdisastermanagement–prevention,mitigation,preparednessas well as response. Section 34 provides for thepowersandfunctionsoftheDDMAintheeventofathreateningdisastersituationordisaster.Theseincludethepowertodirectthereleaseanduseofresources of departments and local authorities,control vehicular traffic, place restrictions on theentry of persons in affected areas as well as theremoval of debris, disposal of unclaimed bodiesand emergency communication, among others.The DDMA’s mandate includes ensuring thatNGOscarryouttheiractivitiesinanequitableandnon-discriminatorymanner.

5.3.3.3 Asevidentfromtheabove,allpowersandresponsibilitiesarevestedinacommittee,namely,the DDMA. These powers and responsibilitiesspan a wide range – from the preparation of adisasterplanandmitigationmeasurestoregulatoryactivitiesduringacrisis.Thereisaneedtorevisitthisarrangement.Itneedstobeconsideredwhetheracollectiveentitylikeacommitteewouldbeabletotaketimelyactionatthetimeofanemergencysituation.

Even though there is a provision that theChairperson of the Committee or Authoritycan exercise all the powers of the latter, such anarrangement would have its limitations. In theGujarat State Disaster Management Act, 2003,it is individual functionaries such as the ReliefCommissioner and the District Collector whohavesuchpowers.

5.4 Views and Suggestions of Stakeholders during the Regional and National Consultations The following paragraphs summarise the viewsandimportantsuggestionsputforwardbyvariousstakeholders during the consultations at theregionalandnationallevels.

5.4.1 State Disaster Management Authority and State Executive Committee

Anumberofobservationsandsuggestionswereputforthasregardstheroles,functions,responsibilitiesandstructuresoftheSDMAandtheSEC.

5.4.1.1.There is a need to have more clarity onthe role of SDMA vis-à-vis various governmentdepartments. Representatives of some States

Box 5.2: sTATe AnD DIsTRIcT level

InsTITUTIonAl sTRUcTURe envIsAgeD by

The DM AcT, 2005.

• The sDMA and the sec exist at the state level.

• The Act also stipulates that every Department of the government of the state has the responsibility of disaster management and to take measures enumerated in section 39.

• The DDMA exists at the district level.

• every local authority also has a statutory responsibility in regard to managing disasters.

• Iinstitutions/entities created prior to the Act continue to exist.

75


pointedoutthatthecurrentroleoftheSDMAislimitedtogivingadviceonpolicymattersandissuingguidelinesandthatitisnecessarytoempowertheSDMAtobecomeapremierinstitutionatthestatelevelfordisastermanagement.ThoseholdingthisviewfeltthatSDMA’sactivitiesoughttobemorevisible.Itshouldalsoplayaroleindisasterresponse.ManyothersfeltthatthedisasterresponsefunctionshouldbehandledbytheDepartmentofRevenueor the Department of Disaster Management,leavingtheSDMAtofocusonmedium-termandlong-termactivitiesofmitigationandpreparedness.

5.4.1.2 SDMAshavebeenconstitutedbyallstatesand UTs. However, in most cases they are justcommittees without any secretariat or dedicatedstaff.Infact,inmanyinstancestheyexistonlyonpaper.SDMAsplaysomeroleinbothpolicyandimplementationonlyinafewStates/UTssuchasAssam,Bihar,Delhi,Gujarat,HimachalPradesh,Kerala,Odisha,UttarakhandandUttarPradesh.

5.4.1.3 Though based on the same Act, thestructure of the SDMA, with some exceptions,varies across States. The Chief Minister is theChairperson in all cases, but the composition ofMembers varies. Some States have Ministers asMembers;otherslikeBiharhaveafull-timeVice-ChairpersonandMembers.MostoftheStateswereoftheopinionthatthepresenceofsomeMinistersand senior functionaries in the SDMA wouldmakeitmoreeffective.AfewStatesdifferedsayingthatthereshouldbesomefull-timeMemberswithanexpertiseinthefieldofdisastermanagement.

5.4.1.4 Mostof theStateswereof theview thattheSDMAshouldhaveasecretariatwithaCEOanddedicatedstaff.Itshouldhavedivisionstodealwithvariousaspectsofdisastermanagementwithprofessional staff. Instead of the Chief Secretary,aseniorofficerpreferablyoftherankofPrincipalSecretarytotheStateGovernmentshouldbetheCEO of the SDMA. The Chief Secretary with

hisnumerousresponsibilitieswouldnotbeabletodevotetimeastheCEOofSDMA,butcouldbeaMemberoftheSDMA.ManyStateswereoftheviewthatthemodeloftheGujaratStateDisasterManagementAuthoritycouldbeadoptedbyotherStates. The small States and UTs in particularfelt that it should not be mandatory for smallStates to constitute SDMA.The Department ofRevenuecouldcontinuetobeinchargeofdisastermanagementactivities.

5.4.1.5 In most cases, there is no interface orsynergy between the SDMA and the ReliefCommissioner of the State. Such an interface

Box 5.3: vIews of sTAkeholDeRs DURIng

consUlTATIons

• The sDMAs have been constituted by all states and UTs, but in most cases they are just committees, without secretariat or required staff.

• In many cases, sDMAs exist only on paper.

• only in a few states/UTs such as Assam, bihar, Delhi, gujarat, himachal Pradesh, kerala, odisha, Uttarakhand and Uttar Pradesh do the sDMAs play some role in both policy and implementation.

• Most of the state representatives felt that having some Ministers and senior functionaries as members of the sDMA would make it more effective. A few states were of the view that there should be some full-time Members with expertise in the field of disaster management.

• In most states there is no linkage or synergy between the sDMA and the Relief commissioner of the state.

• The sec should be more broad-based; it should include key Departments, Director general of Police, and representative of the Army and the bRo.

• The role of the scMc should be defined in the Act.

76


is necessary for effective functioning.The ReliefCommissionershouldhavearoleintheSDMAas Additional CEO or in some cases even asthe CEO.The details could be left to the Stateconcerned.

5.4.1.6 The SDMA could be made broad basedto include some elected representatives, expertsandNGOsinadditiontoMinisters.Incasesomefull-timeMembersareappointed, theyshouldbeidentified carefully through a transparent processsothatonlyexpertsinthefieldareselected.

5.4.1.7 TheStateExecutiveCommitteeshouldbemorebroad-basedtoincludetheDirectorGeneralof Police, Army, BRO and key departments.The role of theSCMCshouldbedefined in theAct. Such a committee is constituted under theEnvironmentProtectionAct,1986. SomeStatessuggestedthattheSCMCcouldsubstituteSEC.


Thedistrict is themost crucial level for activitiesrelated todisastermanagement.At the timeofacrisis, it is the district which organises response.Nodoubt,sub-districtunitssuchasTehsil,Block,Panchayat and Village are also involved in theprocess. But critical decisions are taken at thedistrictlevel.Hence,theorganisationstructurefordisastermanagementatthedistrictlevelneedstobe examined carefully. During the consultations,certainbasicissuesemergedinthisregard.

5.4.2.1 Some stakeholders pointed out thatthe creation of a large number of new structuresin the form of committees could slow down theprocessofresponseandevenmitigationactivities,thereby becoming counter-productive. Disastermanagementactivities couldbeundertakenmoreeffectively by the SDMA through the existingmechanisms at state and district levels. It was

felt that the availability of human, financial andtechnical resources was of prime importance andfurtherreflectionwasneededonthisaspect.

5.4.2.2 Atthedistrictlevel,thepresentarrangementof District Collector and other functionaries fordisastermanagementhasworkedwell.Vestingallpowers incommittees suchas theDDMAcoulddilute powers and reduce the effectiveness of theDistrict Collector and other officials. However,someStatesandotherstakeholders,includingsomeNGOs,wereoftheviewthatthecreationofaneworganisational structure for disaster managementwouldempowertheDistrictCollectorandimprovethecoordinationmechanismatthedistrictlevel.Itwouldbeeasiertoensureparticipationofvariousdepartments andagencies at thedistrict level fordisasterresponse.

5.4.2.3 Almost all the DDMAs are merecommittees without any secretarial support orexperts.Unlesssuchaninfrastructureisprovided,theDDMAswouldnotbeeffective.

5.4.2.4 There was also a view that specificresponsibilities should be given to individualfunctionaries. The Act should clearly articulatespecific roles of the District Collector and otherfunctionariesashasbeendonebytheGujaratStateDisasterManagementAct.

5.4.2.5 Itwasalsopointedoutthatincity-stateslike Chandigarh and Puducherry, the Act hascreatedadualstructureintheformoftheSDMAandtheDDMA.

5.4.2.6 Some suggested that theDDMAshouldhavearepresentationofNGOsandorganisationssuchasCivilDefenceandHomeGuards.

5.4.2.7 ItwasfeltthattheDDMAoughttohaveregularmeetings.

77


5.4.3 Local Authorities

Theresponsibilitiesof localauthoritieshavebeenlaid down in Chapter VI of the DM Act, 2005.Such authorities have to perform the functionsenumeratedinSection41(1)subjecttodirectionsoftheDistrictAuthority.AccordingtoSection41(2),thelocalauthoritiesmaytakesuchothermeasuresasmaybenecessaryfordisastermanagement.

5.4.3.1 During the consultations, States andother stakeholders felt that the role, scope andfunctions of local authorities should be clearlyarticulated in the Act. Despite having a strongnetworkofPanchayatiRajinstitutionsandUrbanLocalBodiesinmanyStates,nospecificrolesandresponsibilitieshavebeenassignedtotheseentities.TheActshouldprovidespecificfunctionstolocal

authorities.Thisassumesallthemorerelevanceinthecontextofthe73rdand74thAmendmentstotheConstitutionofIndia.

5.4.3.2 The main functions, which need to beassignedtolocalauthorities,areasfollows:

• ensuringcomplianceofbuildingregulationsandsafeconstructionofbuildings(newandold)andotherstructures

• preparing a disaster management plan for thelocalarea

• organising disaster management drillsperiodically

• undertakingprogrammestoenhancecommunitybased disaster preparedness, mitigation andpreventivemeasures

5.4.3. Keeping in view the three-tier system ofPanchayats existing in the country, the functionsoflocalauthoritiesduringreliefandrehabilitationphase need to be defined. Another critical issuehighlighted by the stakeholders was the absenceof any obligation on the part of local authoritiesto maintain a certain level of emergency servicesrelated to fire, health, water, and sanitation.However,someStatesmentionedthatvariousActsgoverning the local bodies have some provisionsfor emergency services as a mandatory function.Inclusion of such provisions under the DM Actwould help in strengthening, upgrading andsupplementingongoingeffortstowardsemergingandnewvulnerabilities.

5.4.3.4 It was suggested that the role of keyfunctionaries such as the Mayor, CommissioneroftheMunicipalCorporation,FireServices,CivilDefence and the community should be clearlydefinedintheAct.ItwasalsosuggestedthattheAct shouldprovide specificprovisions formetrosand large cities that would adequately addressadministrative,operationalandfunctionalissues.

Box 5.4: vIews of sTAkeholDeRs on DDMA

AnD locAl AUThoRITIes

• some participants felt that the present arrangement at the district level for disaster management has worked well and that the creation of DDMA could dilute the powers of District collector and other officials. however, many other state representatives and ngos were of the view that the creation of DDMA would empower the District collector and improve the coordination mechanism.

• Most participants were of the view that the DDMA should have a separate secretariat with professional staff and expertise.

• The Act should also articulate the roles and functions of individual functionaries such as the District collector.

• The role, scope and functions of local authorities should be clearly articulated in the Act.

• There should be specific provisions in the Act for Metropolitan and large cities which have the capability to manage disasters effectively.

78


Section ii

5.5 An Analysis of the Working of State and District Level Institutions and Recommendations This section briefly analyses the working of theSDMA,theSECandtheDDMAs,basedonthediscussionsduringtheconsultationsandfeedbackreceived from stakeholders. Based on this reviewsome alternatives for improvement have beenexamined and the recommendations of theTaskForceformulated.

5.5.1 State Disaster Management Authority and State Executive Committee

As discussed in detail in the previous chapter inthecontextoftheNDMA,thereareseveralissuesand constraints regarding the structure, role, andfunctions of SDMA and SEC. The SDMA hasa crucial role to play in disaster management,particularlywithregardtoprevention,mitigation,and preparedness. Though the Department ofRevenue, or in some cases the Department ofRelief and Rehabilitation, has for many decadesplayed an importantrole inmanagingdisasters,a new institutional structure in the form of theSDMAwasenvisagedwithaviewtofocusingonmitigationandpreparednessaspects,whichrequirean approach different from that of response. Bytheirverynaturedepartmentswereconsidered tobelesssuitedtosuchtasks.Departmentshavetocope with day–to-day challenges and activities,hencetheyarenotabletodevotetimetoaspectssuch as prevention, mitigation and preparedness,whichrequiresustainedeffortsandmedium-termand long-term perspectives. The SDMA wasperceivedasaninstitutionalinnovation,particularlyafter the experience of the Gujarat earthquakereconstruction programme. It is with this visionthattheDMAct,2005,providesforthecreationofSDMAs.Infact,evenpriortotheenactmentof

thelaw,theGoIhadadvisedStatestosetupsuchinstitutionalstructures.

5.5.1.1 All the States and UTs have createdSDMAs, but most of the SDMAs – with theexception of a few – appear to exist as merecommittees. In many cases, there has not beenmuch effort to make them functional. In mostcases,thereareconstraintsofhumanandfinancialresources.Therearealsoproblemsoflackofclarityandambiguity.Apartfromtheadministrativeandproceduralaspectsatthestatelevel,thereseemstobeaneedforamendmentstosomeoftheprovisionsintheAct.

5.5.1.2 Asborneoutbytheconsultations,thereisaneedforawelldefinedroleandbetterinterfacewith existing organisational structures such astheSCMCandtheReliefCommissioner.Inthiscontext, a comparison with the Gujarat StateDisaster Management Act, 2003, brings outinterestingaspects:

• TheDMAct,2005,providesforthenominationofSDMAMembersevenfromoutside,whereasthe Gujarat Act envisages that all Memberswouldbeex- officio.

• The Gujarat Act provides for decisions of theAuthoritybyamajority;nosuchprovisionexistsintheDMAct,2005.

• The Gujarat Act empowers the SDMA toappointofficersandotherpersonnel.ThereisnosuchprovisionintheDMAct,2005.

• The powers and functions of the State ReliefCommissioner and the District Collector,amongothers,arespecificallymentionedintheGujaratAct. TheDMAct,2005,hasnosuchprovision.

• Thereareotherimportantdifferencesaswell.Forexample,unliketheDMAct,2005,theGujaratActstipulatesthedeclarationofanaffectedarea.

79


RegardingthenumberofMembers,theCentralActhasanouterlimitof9,whereastheGujaratAct specifies it to be 14; the Gujarat Act alsoprovidesfortwoMinisterstobemembersoftheSDMA.AspertheGujaratAct,theSDMAisrequiredtoserveasarepositoryofinformationondisastermanagement.

5.5.1.3 Keeping in mind the above analysis andviews of stakeholders, the following alternativestructures for the SDMA were considered bythe Task Force and presented at the nationalconsultation:

a.Continue with the SDMA’s present structureandaspertheAct’sexistingprovisions.

b.DiscontinueorwinduptheSDMAandassignalltheworkrelatingtodisastermanagementtotheDepartmentofDisasterManagement, if itexists,orcreatesuchaDepartment.

c. RevampthestructureoftheSDMAasfollows:

• TheMemberswouldbepart-timeMembersasinGujaratandOdisha,amongothers.

• The Ministers of relevant Departments,Chief Secretary, Director General of Police,Secretary in charge of the DepartmentdealingwithdisastermanagementandoneortwoeminentexpertsasMembers

• A separate secretariat of the SDMA withprofessional staff and a CEO who could beoftherankofPrincipalSecretarytotheStateGovernment.TheReliefCommissionercouldfunctionasAdditionalCEO

d.RetainthepresentstructureoftheSDMAwithsomemodifications:

• The number of SDMA Members may bereduced to two or three, and only domainexpertsneedtobenominated.

• Thequalification,tenureandagelimitofthe

Members need to be specified as in severalotherActs.

• TheappointmentofSDMAMembersshouldbe made through an open and transparentprocess.

5.5.1.4 During the national consultation therewasagreaterconvergenceofviewsamongStatesandstakeholdersregardingtheSDMA,incontrasttotheirviewsontheNDMA.AmajorityoftheStatesstatedthattheSDMAsintheirStatesexistedasmerecommitteesandwereyettobefunctional.MostoftheStates/UTs,however,wereoftheviewthat the SDMA was essential for States. As forSDMA’sfunctions,mostStatesfeltthatitshouldfocusonplanningandmitigation,preparednessaswellas long-termrecovery.TheDMDepartmentshouldbeentrustedwithresponseandrelief.Theparticipants also suggested that abasic structure/designshouldbeprovidedundertheAct,withsomediscretiontotheStatesformodificationssuitedtotheircontexts.Thiswouldbeappropriateunderafederalset-up.AmajorityofStatessupportedtheideaofanempoweredSDMAwithitsownbudget,andwithpowerstoconstituteadvisorycommitteesand appoint its own staff and technical experts.MostoftheStateswantedtheSDMAstructuretoberevampedandagreedtooption‘c’asfollows:

• TheMemberswouldbepart-timeMembersasinGujaratandOdisha.

• Ministers of relevant Departments, the ChiefSecretary, the Director General of Police, theSecretaryinchargeoftheDepartmentsdealingwith disaster management and one or twoeminentexpertsasMembers,SDMA.

• The SDMA should have a separate secretariatwithprofessionalstaffandaCEOwhocouldbeof the rankofPrincipal Secretary to theStateGovernment. The Relief Commissioner couldfunctionasAdditionalCEO.

80


Box 5.5: ResTRUcTURIng The sDMA

• The Members may be ex-officio as is the practice in several states. however, the state government may have the discretion to appoint not more than two full-time Members.

• Ministers of the relevant Departments, the chief secretary, the Director general of Police and one or two eminent experts as Members.

• full-time Members, if any, may be selected through an open and transparent process.

• The sDMA should have a secretariat with professional staff and a ceo who could be of the rank of Principal secretary to the state government.

• The sDMA should have the powers to recruit and appoint officers and staff.

• The functions of the sec mentioned in section 22 – other than clauses (a), (d), (e), (f), (g), (h), (l), (o), (p) and (q) – may be assigned to the sDMA.

• The sec may be discontinued.

• The scMc may be included in the Disaster Management Act, 2005, and perform the tasks particularly relating to response and coordination as envisaged by section 22 of the Act.

RecommendationsontheSDMA

5.5.1.5 In view of the above, the Task Forcerecommends the following modifications in thestructureandfunctionsoftheSDMA:

• The role and functions of the SDMA shouldcover policies, plans, guidelines and regulationsrelating to prevention, mitigation, preparednessand long-term recovery. It should coordinatewith theagenciesconcernedandensure thatallactivities relating to prevention, mitigation andpreparednessenvisagedbytheActareperformed.Thiswillincludecoordinatingimplementationofpoliciesandguidelinesandpreparationofplans.

• As discussed later in the context of the SEC,some functions of the SEC mentioned inSection 22 and 23 of the Act, which requiresustained attention, may be assigned to theSDMA.Examplesare:

– PreparationoftheStatePlan[Section23(2)]

– ToexaminethevulnerabilityofdifferentpartsoftheState[Section22(2)(b)]

– To promote general education, awareness,communitytrainingetc.[22(2)(i)].

• The SDMA would have the responsibility ofpreparing and approving the State Plan. Onceit is restructured, as suggested by the TaskForce,theSecretariat/OfficeoftheSDMAwillprepare the State Plan and place it before theStateAuthorityforapproval.TheprocesswillbesimilartothatofthepreparationandapprovaloftheNationalPlanbytheNDMA.

• TheMembersmaybeex-officioorpart-timeasinseveralStatesatpresent.However,theStateGovernmentmayhavethediscretiontoappointnotmorethantwofull-timeMembers.

• Ministers of the relevant Departments, ChiefSecretary,DirectorGeneralofPolice,andoneortwoeminentexperts,whocouldbepart-timeorfull-time,maybeincludedasMembers.

• A separate secretariat of the SDMA withprofessional staff and a CEO who could beof the rankofPrincipal Secretary to theStateGovernment. The Relief Commissioner couldfunctionasAdditionalCEO.Inthealternative,particularly in smaller States, the ReliefCommissionercouldfunctionasCEO,SDMA.

• Full-time Members, if any, including theVice-Chairperson, would be persons withexperience, domain knowledge and credibleaccomplishments in disaster management.Tenure and age limit of Members need to be

81


specifiedasinotherActssuchasthoserelatingtoregulatoryandothercommissions.

• The selection of full-time Members of theSDMA should be through an open andtransparent process. For this purpose a SearchandSelectionCommitteemaybeconstituted.

• InSection14aclausemaybeaddedtoprovidefortheChairpersonoftheStateAuthoritywhenaStateisunderPresident’srule.

• The following provisions may be included inChapterIIIoftheAct:

The State Authority shall consist of the following:-

• the Chief Minister of the State, who shall be the Chairperson of the State Authority, ex officio

• two Ministers nominated by the Chief Minister by virtue of their office from amongst the Council of Ministers of the State as Members, ex officio

• the Chief Secretary of the State, ex officio

• the Director General of Police of the State, ex officio

• the Chief Executive Officer of the Authority, ex officio

• not more than two full-time Members; and

• two other officers of the State Government or two more Ministers or two eminent experts in disaster management

• The Chairperson of the State Authority may designate one of the Members to be the Vice-Chairperson of the State Authority

• Full-time Members, if any, of the State Authority shall be persons of ability, integrity and standing who have knowledge of and credible accomplishments in disaster management, science or public policy.

• Full-time Members of the State Authority shall be appointed by the Government of the State after obtaining the recommendations of a Committee comprising the Chief Minister (as Chairperson),

Speaker of the Legislative Assembly of the State, Minister-in-charge of the Department dealing with disaster management, and the Leader of the Opposition in the Legislative Assembly.

• A full-time Member shall hold office for a term of five years from the date of entering office; provided that the Member shall not be eligible for re-appointment in the same capacity; provided further that no full-time Member shall hold office as such after attaining the age of sixty-five years.

– The salary, allowances and other terms and conditions of service of the full-time Members shall be such as may be prescribed by the Government of the State.

Recommendations on the State ExecutiveCommittee

5.5.1.6 TheSECmaybediscontinued.TheSCMCmaybeincludedintheDisasterManagementAct,2005,andsubstitute theSECinSections20,21,22andotherrelevantprovisions.ThecompositionoftheSCMCmaybeasprovidedinSection20(2)with a modification that the State GovernmentmayincludetheDirectorGeneralofPoliceandanyotherofficersasmaybenecessary intheSCMC.Forexample,aStateGovernmentmayincludethecommandingofficerofarmedforceslocatedintheState.OrtheymayconsidertheheadoftheNDRFifaunitoftheNDRFislocatedwithintheState.

5.5.1.7 Section 22(2) may be modified to theeffectthatthefunctionsoftheSCMCwillbeto:

• CoordinateandmonitortheimplementationoftheNationalPolicy, theNationalPlanandtheStatePlan.

• Monitor the implementation of disastermanagementplanspreparedbytheDepartmentsof the Government of the State and DistrictAuthorities.

82


• MonitortheimplementationoftheguidelineslaiddownbytheStateAuthorityforintegratingdisasterpreventionandmitigationmeasuresbytheDepartmentsintheirdevelopmentplansandprojects.

• Evaluate preparedness at all governmental ornon-governmental levels to respond to anythreatening disaster situation, or disaster, andgive directions, where necessary, for enhancingsuchpreparedness.

• Coordinate response in the event of anythreateningdisastersituationordisaster.

• GivedirectionstoanyDepartmentoftheStateGovernment or any other authority or bodyin the State regarding actions to be taken inresponsetoanythreateningdisastersituationordisaster.

• Advise the State Government regardingall financial matters in relation to disastermanagement.

• Laydown,reviewandupdatestatelevelresponseplansandguidelinesandensurethatdistrictlevelplansareprepared,reviewedandupdated.

• Ensurethatcommunicationsystemsareinorderand the disaster management drills are carriedoutperiodically.

• PerformsuchotherfunctionsasmaybeassignedtoitbytheStateAuthorityorasitmayconsidernecessary.

TheaboveitemscorrespondtothosementionedinSection22(2) (a), (d), (e), (f ), (g), (h), (l), (o), (p)and (q). Other functions enumerated in Section22(2)maybeassignedtotheSDMA.

5.5.1.8TheDepartmentofDisasterManagementortheDMDivisionlocatedinanyotherDepartmentor the Office of the Relief Commissioner mayprovide secretariat services to the SCMC toperform the aforesaid activities in addition to its

ownfunctions.Astheseactivitiesrelatebasicallytoresponse,andtosomeextenttoensurecompliancebyvariousDepartmentsoftheStateGovernmentwithregardtodisastermanagementpolicies,plansand guidelines, the DM Department/Divisionshouldbeabletoprovidesecretariatserviceswithits existing strength or with the help of someadditional personnel. Instead of the numerousactivitiesenumeratedinSection22(2)fortheSEC– some of which require comprehensive effortscoveringallaspectsofdisastermanagement–theabove items focusondisaster response and somebroadaspectsofmitigationandpreparedness.Soitwouldbe feasible for theSCMC,even thoughits members have several other functions, toperform the above functions effectively, unlikethe SEC at present. The Chief Secretary beingthe Chairperson, and Secretaries to the relevantDepartments being Members, the SCMC willbe able to effectively ensure not only disasterresponsebutalsoimplementationofplans,policiesandguidelinesbyvariousDepartmentsandotheragencies. This will supplement the efforts andenhance the effectiveness of the SDMA whichwouldberesponsibleforcoordinatingallaspectsofprevention,mitigationandpreparedness.


At the district level, the district administrationheaded by the District Collector has handleddisaster management activities for decades,though these activitiesmostly relate to relief andresponse. It has the experience, expertise as wellasmotivationtohandlesuchatask.Yet,therearedeficiencies.There is no mechanism of sustainedandcontinuouswork,particularlyformitigationandpreparedness.Thereisnooverallperspectivetoaddressdisaster risk reduction issues.Thedistrictadministration responds as and when there is athreateningdisastersituation,ordisaster.There isanotheraspecttoitaswell.TheDistrictCollector

83


administers programmes such as watersheddevelopment and MNREGA, which involve thecreation of assets relating to flood control, waterconservation, water harvesting, drought proofing,micro-irrigationand landdevelopment.Thesearedisaster reduction activities. But none of these islinkedwiththedisastermanagementorganisationatthedistrict level.Hence,there isaneedforanorganisational structure at the district level toaddressdisastermanagementinaholisticmanner.Aquestionthatarises iswhethertheDDMA,asprovidedintheDMAct,2005,istheappropriateagencyforthistask.

5.5.2.1 Differing views emerged during theconsultations.Oneviewwasthattheauthorityandeffectiveness of the District Collector would getdiluted with the creation of DDMA. Some saidthattheDDMAwouldbejustanadditiontothelargenumberofcommitteesheadedbytheDistrictCollector.ThusthisviewheldthattheinstitutionoftheCollectorshouldbeupheld,ratherthanthatofDDMA.

TheotherviewwasthattheDDMAcouldprovideamechanismforeffectivecoordinationfordisastermanagementandempowertheDistrictCollectorbecause theparticipationof relevantdepartmentsand agencies would be formalised and becomemoresystematic.

5.5.2.2 ItappearsthattheDDMAinitspresentform is not effective. No doubt, it includes theDistrict Superintendent of Police, the ChiefMedicalOfficerand twootherdistrictofficers inadditiontoelectedrepresentatives.Itmay,tosomeextent, provide a coordination mechanism. Butthe fact remains that at thedistrict level there isalready a District Coordination Committee withalltheabovementionedfunctionariesasMembers.The other deficiency is that the DM Act, 2005,doesnotputaformalresponsibilityonanyofthefunctionaries, including the District Collector.

EventheemergencypowersenumeratedinSection34oftheAct,whichrelatetoregulatorymeasuressuchascontrollingvehiculartariff,restrictingentryofpersonsintheaffectedareaandestablishinganemergency communication system, are vested inthe DDMA, which is just a committee, and notwith any individual functionary.Thisneeds toberectified.

5.5.2.3 InthecontextoftheDDMAthefollowingalternativeswereconsidered:

a.Discontinue the DDMA and provide forfunctions, responsibilities and powers of therelevantfunctionariesintheAct.

b.TheDDMAshouldincludeoneortwoexpertsasMembers.ItshouldhaveasecretariatwithaCEOandprofessionalstaff.ItmaybelocatedintheCollector’sofficeorevenoutside.

5.5.2.4 The above aspects were discussed furtheratthenationalconsultation.Subsequentmeetingsof the Task Force decided to have an in-depthdiscussion on the district level organisationalstructure with the District Magistrates of a fewdisaster-pronedistrictsofthecountry.Themeetingwas held at the NIDM on December 14, 2012.After a detailed discussion the following viewsemerged:

• DDMAs are required. However, in city-StateslikeChandigarhandPuducherry,theduplicationofstructuresoftheSDMAandDDMAshouldbeavoided.

• Enabling provisions should be included in theActfortheDistrictMagistrate/DistrictCollectorto effectivelyhandle emergency situations.Thepresentstipulationoftakingdecisionssubjecttoseeking ex-post-facto approval by the DDMAcould deter timely decisions by the DistrictMagistrate/DistrictCollector.

• TheMunicipalCommissionershouldchairthe

84


DDMA instead of the District Collector inplaceswhereabigcorporationspansanumberofrevenuedistricts.

• The District Rural Development Agency typeofnon-lapsablefundsatthedistrictlevelwouldbe appropriate for preparedness/non-structuralmitigation measures to be undertaken by theDDMA.

RecommendationsoftheTaskForceonDDMA

5.5.2.5 Havingconsidered theaboveaspects, theTaskForcemakesthefollowingrecommendations.

5.5.2.5.1TheprovisionsoftheActrelatingtotheDDMAmayberetainedwithsomeamendments:

5.5.2.5.2ThecompositionoftheDDMAprovidedin Section 25(2) of the Act may be modified toincludetwoeminentpersonswithexperienceandknowledge of disaster management. If necessary,the number of Members may be increased fromseventonine.

5.5.2.5.3 The DDMA should have a separateofficeorsecretariatwithprofessionalstaff,asmaybe prescribed by the State Government, in ordertoeffectivelyperformthenumeroustaskssuchasenumerated in Section 30 of the Act.This officeshould be headed by the Additional Collector/Additional Deputy Commissioner who is theCEOof theDDMAunderSection25(4)of theAct.

5.5.2.5.4 Section 29 may, as in case of similarprovisions for NDMA and SDMA, be amendedto vest some powers in the DDMA to recruitpersonnelandengageconsultantswith respect tosanctionedposts.

5.5.2.5.5 Section 34 of the Act enumerates thepowersandfunctionsoftheDDMAintheeventof any disaster situation or disaster. A dozen

items included are of the nature of regulatory/administrativeactivitiessuchasgivingdirectionforthereleaseofresources,controlofvehiculartraffic,removal of debris, search and rescue operations,anddisposalofunclaimeddeadbodies.Fortimelyand prompt action, these powers and functionsshouldbevestedintheDistrictCollector/DistrictMagistrate. In the title of Section 34, ‘DistrictAuthority’maybereplacedby‘CollectororDistrictMagistrateorDeputyCommissioner’.

5.5.3 Local Authorities

As regards local authorities, the followingsuggestions and observations were made duringtheregionalandnationalconsultations.

5.5.3.1 The roles and responsibilities of thelocal authorities need to be articulated withgreater clarity. Participants emphasised that localauthorities have an important role to play andshouldbemade responsible forpreparednessandmitigation, particularly in ensuring compliancewith the laws and rules of building safety andfire safety along with response. Their roles andresponsibilitiesshouldbeclearlymentionedintheAct.

5.5.3.2 AutonomousDistrictCouncilsestablishedunder the VIth Schedule of the Constitution ofIndia should be brought under the provision forLocalAuthoritysincePanchayatiRajInstitutionsdonotexistinsomeStateslikeMeghalaya.Specificprovisionsshouldbemadeforthemetrosandlargecitiesastheirissues,dynamicsandcapabilitiesareverydifferentfromthoseofotherlocalbodies.Inmajor cities, municipal corporations have a largeadministrative system including departments likeengineering, public health and, sometimes fireservices.Thesewouldprovideagoodmechanismforcoordinatedresponsetoacrisisordisaster.Further,in citieswith aPoliceCommissioner system, theDistrictCollectordoesnothaveasmuchofaroleasinotherdistricts.Insuchcases,theDDMAmay

85


not be very suitable. Hence, for major cities it ismoreappropriatetomaketheurbanlocalauthoritydirectly responsible fordisastermanagement.TheSecond Administrative Reforms Commissionhas recommended that ‘In larger cities (say, withpopulation exceeding 2.5 million) the Mayor,assisted by the Commissioner of the MunicipalCorporationandthePoliceCommissioner,shouldbedirectlyresponsibleforCrisisManagement’.

Recommendations of the Task Force on LocalAuthorities

5.5.3.3 Having considered the feedback andsuggestions during the various consultationsand having analysed the relevant provisions ofthe Act, the Task Force makes the followingrecommendations:

5.5.3.3.1 As regards the suggestion for bringingAutonomous District Councils under theprovisionsoftheLocalAuthority,thedefinitionofLocalAuthorityinSection2(h)alreadytakescareof it. However, for further clarity, AutonomousDistrictCouncilsmaybeadded to thedefinitioninthesamesub-section2(h)oftheAct.

5.5.3.3.2Section41(1)providesforthefunctionsof Local Authorities for the purpose of disastermanagement. It enumerates activities such astraining of officers and employees; maintainingandkeepingresourcesreadyforuseintheeventofa disaster; ensuring that all construction projectsconformtotheprescribedstandards;andcarryingout relief, rehabilitation and reconstructionactivities. For more clarity, the following twoaspectsmaybeincorporated:

• Ensuringcompliancewiththe laws,codes,andrulesrelatingtobuildingsafetyandfiresafety.

• A reference to the preparation of a disastermanagementplanasenvisagedinSection32oftheAct.

5.5.3.3.3 In Chapter VI of the Act, some newsectionssimilartoSections25,26,27,29and30maybeaddedsoastoenabletheStateGovernmentto constitute a Disaster Management Authorityfor large cities, e.g., those with MunicipalCorporations.SuchanAuthorityshouldhavethefollowingfeatures:

• The Mayor of the Municipal CorporationshouldbetheChairperson,withtheMunicipalCommissioner, Police Commissioner, DistrictCollector and two experts/specialists asMembers.

• The Authority should act as the planning,coordinatingandimplementingbodyfordisastermanagementandtakeallsuchmeasuresforthepurpose of disaster management in the areaof the city under its jurisdiction in accordancewith the guidelines laiddown by theNationalAuthorityandStateAuthority.

• The functions of the Authority may beenumeratedintheproposedSectionasthoseoftheDDMAmentionedinSection30(2)oftheAct.

Box 5.6: ResTRUcTURIng of The DDMA

• The DDMA should have, in addition to those specified in section 25 of the Act, two eminent persons with experience and knowledge of disaster management as Members. If necessary, the number of Members may be increased from 7 to 9.

• The DDMA should have a separate office or secretariat with professional staff.

• The DDMA should be vested with some powers to recruit and appoint personnel and engage consultants.

• The powers and functions of the DDMA envisaged in section 34 of the Act may be vested in the District collector.

86


• It needs to be specifically mentioned that theAuthoritywouldfunctioninclosecoordinationwith the DDMA. Its disaster management

plan should be linked to the District DisasterManagement Plan and the State DisasterManagementPlan.

Box 5.7: Role of locAl AUThoRITIes

• section 41 of the Act may incorporate the following two aspects:

– The local authorities should have the responsibility of ensuring compliance with laws, codes and rules relating to building safety and fire safety.

– A specific mention of the responsibility to prepare disaster management plans.

• chapter vI of the Act may provide for enabling the state government to constitute a Disaster Management Authority for large cities, e.g., those with Municipal corporations.

• The Mayor of the Municipal corporation may be chairperson with the Municipal commissioner, Police commissioner, District collector and two experts /specialists as Members.

87

Role of the Government and Financing Arrangements6

6.1 Introduction Theroleof theCentralGovernment and that ofState Governments as envisaged by the DisasterManagement Act, 2005, forms the crux of thischapter.


• describes the provisions relating to the dutiesand responsibilities of various Ministriesand Departments, ranging from mitigation,preparedness, response and rehabilitation tofinancingarrangementsforthoseactivities

• describes the Act’s provisions for the creationof Funds both for response and mitigationat various levels. This signifies an innovativeapproach, indicating a change in thinking asfar as the financing of disaster management isconcerned.Itisanimportantaspectwhichneedsdiscussion

SectionII:

• focusesonthereviewoftheAct’sprovisionsbytheTaskForce

• enumerates the recommendations of the TaskForceonalltheaboveaspects

Section i

6.2 Role of the Central GovernmentSections35,36and37oftheActcontainimportantprovisionsrelatingtothemeasurestobetakenbytheGoI.

6.2.1 Section 35 enjoins upon the CentralGovernment to take all such measures that arenecessaryforthepurposeofdisastermanagementand also specifies some of those measures. Asstatedearlier,theexpression‘CentralGovernment’,as defined in Section 2 of the Act, means theMinistry or Department of the GoI havingadministrativecontrolofdisastermanagement.Inotherwords,Section35providesforthedutiesandresponsibilitiesoftheMHA–theDMDivision–withrespecttodisastermanagement:

• TocoordinatetheactionsofvariousMinistries/Departments of the GoI, State Governments,the NDMA, SDMAs, government and non-governmental organisations relating to disastermanagement.

• To ensure that the Ministries/Departmentsof the GoI take action for the integration ofdisasterpreventionandmitigationmeasures intheirdevelopmentplansandprojects.

• To establish institutions for research, traininganddevelopmental programmes in thefieldofdisastermanagement.

6.2.2 Section36oftheActlaysdownthedutiesand responsibilities of the variousMinistries andDepartmentsoftheGoI:

• Totakemeasuresnecessaryforthepreventionofdisasters,mitigation,preparednessandcapacitybuilding.

• To integrate into their respective plans andprojects, measures for preparedness andmitigationofdisasters.

88


• To allocate funds for disaster prevention,mitigation,preparednessandcapacitybuilding.

• Toprepare–asSection37envisions for everyMinistry/Department of the GoI – a disastermanagement plan specifying various aspectssuchasmeasurestobetakenforpreventionandmitigationofdisasters,rolesandresponsibilitiesinrelationtopreparednessandcapacitybuildingin order to deal with any disaster situation ordisaster.

• Toreviewedandupdatetheplanannually.

• Tomakeprovisions forfinancing the activitiesspecifiedinthedisastermanagementplan.

• To furnish a status report regarding theimplementationoftheplantotheNDMA.

6.2.3 Tosummarise,theDMAct,2005,clearlyenvisageseveryMinistry/Departmentof theGoIhaving statutory responsibilities with regard tomeasures of prevention, mitigation, preparednessand response to disasters. The Act makes itmandatory for every Ministry/Department toprepare its disaster management plan. The Actenumeratescertainaspectswhicharetobeincludedin theplan. Italsoprovides foranannual reviewandupdatesoftheplanandfortheapprovaloftheoriginal as well as updated plan by the NDMA.It enjoins upon the Ministries and Departmentsto make provisions for financing the activitiesspecifiedintheplanandtofurnishastatusreportontheimplementationoftheplantotheNDMA.The Act mandates that the Central Governmentor theMHAis required to coordinate theaboveactivities of the Ministries/Departments of theGoI.ItistheresponsibilityoftheMHAtoensurethat the various Ministries/Departments of theGoIperformthetasksassignedtothembytheActandmaketherequiredfinancialprovisionssothattheyareabletocarryouttheactivitiesincludedintheplan.

6.2.4 However, in the seven years since thepassage of the Act, not much has been done bythe respective Ministries and Departments inthisregard.TheNDMAfeels thattheMinistriesare neither willing nor able to undertake theactivitiesenumeratedaboveregardingthedisastermanagement plans. The MHA and NDMAare yet to develop any mechanism to ensure theimplementation by the various Ministries andDepartmentsoftheaboveprovisionsoftheAct.

6.2.5 The above scheme of the Act specifyingthe responsibilities of various Ministries andDepartments and also mandating them to makethenecessaryfinancial provisions in their budgetfor activities related to disaster management iswell founded in the new thinking and approachto disaster management. It clearly brings outthe significantpoint thatdisastermanagement isnot the responsibility of only one department ororganisation. It requires a multi-agency, multi-sectoral and multi-disciplinary approach to be

Box 6.1: Role of The goveRnMenT In

DIsAsTeR MAnAgeMenT

• section 35 of the Act specifies some of the measures to be taken by the MhA.

• The Act mandates that every Ministry/Department of the goI has statutory responsibilities with regard to measures of prevention, mitigation, preparedness and response to disasters.

• The MhA has to coordinate the actions of various Ministries /Departments of the goI, state governments, the nDMA, sDMAs, government and non-governmental organisations.

• There are similar provisions (sections 38, 39 and 40) regarding the state government and its departments and other organisations.

• Although the Act has been in operation for over seven years now, it appears that effective measures are yet to be taken by governments.

89

Role of the government and financing Arrangements

effective. These principles have been clearlyenshrinedandarticulatedintheAct.Theproblem,however, lies in the implementation of theseprovisions.

6.2.6 It is necessary to work out a mechanismand, if necessary, redesign to some extent theorganisational structure, so that theprovisions oftheActareeffectivelyimplemented.Forexample,theDMDivisionoftheMHAappearsnotsowellequippedtoperformthefunctionsenumeratedinSection35oftheAct.Thisisnotbecauseoflackofcompetenceandabilitybutbecauseofinadequateresourcesofpersonnelandfunding.Inviewofthis,it would be worthwhile to have a three-prongedapproach to effectively implement the provisionsofSections35,36and37oftheAct:

• First, the DM Division of the MHA may bestrengthened.

• Second, the NCMC, with the secretarialassistance of the DM Division of MHA, mayperiodicallymonitortheperformanceofvariousMinistries.

• Third, as theTask Force has earlier suggested,certainresponsibilitiesandactivitiesrelatingtothe preparation of disaster management plansshould be assigned to the NDMA instead ofthe NEC. With its restructuring, it would beappropriatetoassigntotheNDMAtheworkofcoordination,onacontinuousbasis,withvariousMinistries and agencies. The NDMA, in itspresentform,maynotbeeffectiveinperformingthistask,particularlywhenitcomestoensuringthat various Ministries and Departmentsundertake the activities mandated by the Act.But if the NDMA is reorganised as theTaskForcehasrecommended,itwillhaveadifferentprofile and Ministries and Departments, too,will respond to its suggestions with a greatersense of urgency. The NDMA’s efforts in this

regardwouldbesupplementedbytheperiodicalmonitoring of the NCMC headed by theCabinetSecretary.

6.3 Role of State Governments SimilarprovisionsrelatingtotheStateGovernmentsas well as their respective Departments arecontainedinSections38,39and40.

6.3.1 Section38makes itmandatory forStateGovernments to take measures for the purposeof disaster management. It enumerates some ofthetasksasregardsdisastermanagementthataretobeperformedby them. Theexpression‘StateGovernment’,asdefinedinSection2oftheAct,means the ‘Department of Government of theState having administrative control of disastermanagement and includes Administrator of theUnionTerritoryappointedbythePresidentunderArticle 239 of the Constitution’. The duties andresponsibilities of the State Government (whichcouldbetheDepartmentofDisasterManagementortheRevenueDepartment)are:

• TocoordinateactionsofdifferentDepartmentsof the Government of the State, SDMAs,DDMAs, the local authority and non-governmentalorganisations.

• ToensurethepreparationofdisastermanagementplansbythedifferentdepartmentsoftheState,asincaseoftheCentralGovernment.

• To ensure that different departments makenecessaryprovisionsforfinancingthemeasuresfor prevention, mitigation, preparedness andcapacity building and also take measures tointegrate these aspects in their developmentplansandprojects.

• Section 39 enumerates the responsibilities ofevery Department of the Government of aState.Thosearesimilartotheresponsibilitiesatthecentral level.However, therearesignificant

90


additional responsibilities such as makingavailable resourcesandundertakingthe taskofrehabilitation and reconstruction. The disastermanagement plan to be prepared by everydepartmentoftheStateGovernmenthastobeinconformitywiththeSDMA’sguidelines.Section40 indicates the aspects to be covered by thedisastermanagementplanofeverydepartment.Theplanistobereviewedandupdatedannually.ThestatusreportonitsimplementationistobesubmittedtotheSEC.

6.3.2 Here again, the problem is that ofimplementation. Admittedly, the roles andresponsibilities are more clearly defined at thestate level, yet there is need for a more effectivemechanism for the implementation of the Act’sprovisions. The SDMA has to play a more pro-active roleand its restructuring, as recommendedin Chapter 5, will help streamline systems andprocedures.

6.4 Preparation of Disaster Management PlansTheActprovidesfordisastermanagementplansatthenational,stateanddistrictlevels.Italsoprovidesfor the preparation of such plans by CentralMinistries/Departments, State GovernmentDepartmentsaswellasthedistrictlevelofficesoftheCentralGovernmentandStateGovernments.Whensomanytypesofplanshavetobeprepared,it becomes essential to ensure that they are allconsistentwitheachother,adequateandrelevant.Itisalsonecessarytohaveamechanismtoensurethattheseplansarenotmerelyaformalitybutareoperationalandupdatedonaregularbasis.

6.4.1 Section11oftheActmakesitmandatoryfor the NEC to prepare the National DisasterManagement Plan (National Plan) for thewhole country. It lays down the broad scopeof the National Plan and the requirements of

consultation with State Governments, expertbodiesororganisationsinitspreparation.TheActalsoprovidesforanannualreviewandupdatesofthe National Plan. It enjoins upon the CentralGovernmenttomakeprovisionsforfinancingtheactivitiestobecarriedoutunderthePlan.Section11(6)mandatesthattheMinistries/Departmentsof the GoI shall draw up their own plans inaccordance with the National Plan. Section37 of the Act further elaborates the duties andresponsibilitiesoftheMinistries/DepartmentsoftheGoI,makingitmandatoryforeveryMinistry/Department of the GoI to prepare a disastermanagement plan. The section enumeratescertain aspects to be included in the plan. Italso provides for the annual review and updatesoftheplananditsapprovalbytheNDMA.TheMinistry/Department concerned has to makeprovisionsforfinancingtheactivitiesspecifiedintheplanandfurnishastatusreportregardingtheimplementationoftheplantotheNDMA.

6.4.2 Similar provisions exist for the StateGovernments. Under Section 23 of the Act, theSEC is mandated to prepare a State DisasterManagement Plan after consultations with localauthorities, district authorities and the people’srepresentatives, keeping in view the NDMA’sguidelines. It provides for an annual review andupdate of theStatePlan.TheStateGovernmentis required to make provisions for financing theactivities to be carried out under the State Plan.Under Section 23 (7), the departments of theGovernmentoftheStatearerequiredtodrawuptheirownplansinaccordancewiththeStatePlan.Section40elaboratesthedutiesandresponsibilitiesof the departments of the State Government inthis regard. Every department has to prepare adisaster management plan and make provisionsforfinancingit.ThesectionprovidesforanannualreviewandupdateaswellasastatusreporttobefurnishedtotheSEC.

91


6.4.3 Section 31 of the Act provides for thepreparationof theDistrictDisasterManagementPlanforeverydistrictoftheState.ItenvisagestheDistrictPlanasshowingthevulnerableareasofthedistrict, themeasuresrequiredforpreventionandmitigation of disasters, the capacity building andpreparednessmeasures involved, the allocationofresponsibilities among the different district leveldepartments,theemergencyresponsemechanism,includingthecommunicationsystem,procurementof essential resources and the dissemination ofinformation. Section 31 enjoins that the DistrictPlanbepreparedafterconsultationwiththelocalauthoritieskeepinginviewtheNationalPlanandtheStatePlan.Section31providesforanannualreviewandupdateoftheplanandalsoauthorisestheDDMAtoreviewtheimplementationoftheDistrict Plan and issue directions to differentdepartmentsoftheGovernmentinthedistrictforitsimplementation.

6.4.4 Section32oftheActmakesitmandatoryfor every office of the GoI and of the StateGovernment at the district level, and the localauthorities, to prepare a disaster managementplan.Itlaysdownthebroadscopeoftheplanandprovides for the coordination of its preparationand its implementation by the local authority,communities and other stakeholders. It alsoprovides for a regular review and update of theplan.Thus,everygovernmententityatthedistrictlevel as well as of the local authority is expectedtoprepareitsdisastermanagementplanundertheDDMA’ssupervision.ItisimportanttonotethatthoughSection41,dealingwith localauthorities,does not explicitly mention the preparation ofa disaster management plan Section 32 makes itmandatoryforthelocalauthoritiestopreparetheirdisastermanagementplans.

6.4.5 The provisions of the Act envisagethe DDMA preparing the District DisasterManagement plan at the district level, whereas

at the state level and national level it envisagesthe SEC and NEC preparing such plans andgetting them approved by the SDMA and theNDMA.SomedistrictshadtheirdistrictdisastermanagementplansevenpriortotheAct.DDMAsdo not seem to have contributed much to thepreparation of the District Plan due to lack ofsecretarial supportand technical andprofessionalinputs. The situation is much worse at the stateandnationallevel.Theplansareyettobefinalisedinmostcasesbecause theSECandNEChardlymeet;itisnotfeasibleforthemtomakesustainedefforts to prepare the plans. The NDMA andSDMAsfeelhelplessbecausetheycannotapprovetheplansunless theyarepreparedandsubmittedby the NEC or SEC concerned. It would beworthwhile to entrust the responsibility of thepreparation of the National Plan to the NDMAandtheStatePlantotherespectiveSDMA.OncetheNDMAandtheSDMAsarerestructured,theNDMO(OfficeoftheNDMA)andtheSDMO(OfficeoftheSDMA)shouldbeheldaccountableandresponsibleforthepreparationofsuchplans,based on consultation and expert assistance. TheplanspreparedbytheNDMOandSDMOcanbeapprovedbytheNDMA6ortherespectiveSDMAin a formalmeeting. Thepreparationofdisastermanagement plans by Ministries/Departmentsand organisations, including local authorities,shouldbemonitoredby theNCMCor the statelevelCMConaregularbasis.

6.4.6 The scope of the District Plan – andalso the State and the National Plan – is quitecomprehensive. It is to includenotonly responserelatedactivitiesbutalsopreventionandmitigation,which require a medium-term or long-termperspective. Mitigation includes both structuralandnon-structuralmeasuressuchasenforcementof building codes. Though it is not necessary toinclude minute details in the Act, it would be

6AsincaseofthePlanningCommission

92


worthwhile to have a proper documentation oftheadministrativearrangementssothattheplansregardingtheincorporationoflong-termmeasuresand emergency response are easy to access andcomprehend by those in charge of managingdisasters. For example, one can have separatevolumes of the plan for mitigation and responsemeasures.

6.4.7 As discussed above, the Act envisagesdisaster management plans at the national, stateanddistrictlevelandalsoforlocalauthorities.TheActenvisionsanapproachofplanningfromabove.ThustheStatePlanandplansofvariousMinistries/Departments are to be prepared keeping in viewtheNationalPlan.Similarly,thedistrictplansarerequired to keep in view plans at the state andnational levels. It is essential not only to ensureconsistencyamongthedifferenttypesandlevelsofdisastermanagementplansbutalsotoensurethatplans at state and national level are realistic andrelevantbytakingintoaccountthevariousfeaturesandneedsofsmallergeographicalunits.

6.4.8 The Manufacture, Storage and Import

of Hazardous Chemicals Rules, 1989, providefor the preparation of on-site and off-site plansfor nuclear installations and major hazardousindustries. The plans prepared for nuclearemergencies are quite comprehensive. However,the off-site emergency plans for major chemicalindustries need considerable improvement interms of comprehensiveness and practicability ofimplementation.Itisnecessarytolinksuchplanswith the disaster management plans of districtsandlocalauthorities.

6.5 Recommendations on the Preparation of Disaster Management PlansAs discussed earlier, Sections 35, 36 and 37 oftheActenumerate thedutiesandresponsibilitiesof various Ministries/Departments of the GoI.Similarly,Sections38,39 and40provide for theduties and responsibilities of the departmentsof respective State Governments. There are alsoprovisions relating to the preparation of disastermanagementplansatthenational,stateanddistrictlevels.ItisobservedbytheTaskForcethatalthough

Box 6.2: PRePARATIon of DIsAsTeR MAnAgeMenT PlAns

• There are several provisions in the Act for the preparation of disaster management plans at the national, state and district levels.

• A national Disaster Management Plan is to be prepared by the nec.

• every Ministry/Department of the goI is to prepare a disaster management plan and make provisions for financing the activities specified therein.

• There are similar provisions for state Disaster Management Plans and for the departments of state governments.

• At the district level there has to be a District Disaster Management Plan.

• The Act makes it mandatory for every office of the goI and of the state government at the district level and of the local authorities to prepare their disaster management plans.

• It is also mandatory, under the Manufacture, storage and Import of hazardous chemical Rules, 1989, for major hazardous industries to prepare on-site and off-site plans.

• There is a need to ensure that all the above types of plans are consistent with each other. The Task force has made suggestions for ensuring timely preparation and updating of the disaster management plans.

93


sevenyearshave elapsed since thepassageof theAct, not much has been done by the Ministries,Departments and district administration toeffectively implement the provisions of the Act.As the Task Force has analysed in the previousparagraphs, the following recommendations maybeconsidered.

6.5.1 TheDMDivisionoftheMHA,GoI,maybe strengthened so that it is better equipped toundertaketheactivitiesassignedbytheAct.

6.5.2 The NCMC headed by the CabinetSecretary – which as has been suggested earliershouldbecomeastatutorycommittee–may,withthe secretarial assistance of the DM Division,MHA, periodically monitor the performance ofthevariousMinistriesoftheGoIwithrespecttotheprovisionsoftheAct.

6.5.3 The NDMA should be given theresponsibility of preparing the National DisasterManagement Plan and also of monitoring theactivitiesofvariousMinistriesregardingthetasksassignedbytheAct.

6.5.4 At the state level, the SDMA needs tobegiven the responsibilityofpreparing theStateDisaster Management Plan and reviewing theperformance of various departments regardingthe tasks assigned to them by the Act.This willbe supplemented by a regular monitoring of theactivitiesofvariousdepartmentsbythestatelevelCMCheadedbytheChiefSecretary.

6.5.5 The DDMAs should be better equippedto be able to prepare the District DisasterManagementPlansandundertakeotheractivitiesrelatedtomanagingdisasters.

6.5.6 Itisnotonlynecessarytoensurethatthedifferenttypesandlevelsofdisastermanagementplans are consistent with each other but also tomakesurethattheplansatthestateandnationallevel are realistic and relevant by taking into

accountthevarious featuresandneedsofsmallergeographicalunits.

6.5.7 The off-site emergency plans of majorchemicalindustriesandnuclearinstallationsneedtobelinkedwiththedisastermanagementplansofthedistrictandlocalauthorities.

6.5.8 A few of the above recommendationswould require administrative actions; otherrecommendations necessitate amendments to thecorrespondingprovisionsoftheActinthelightofthediscussioninthischapterofthereport.

6.6 Financing Arrangements In this segment we discuss the financingarrangements for disaster management prior totheDMAct,2005,andthefinancingmechanismenvisaged by the Act. Financing is extremelyimportant for disastermanagement –notmerelyforresponsebutalsoforprevention,mitigationandpreparedness.Disastermanagementbeingamulti-sectoral,multi-agencyactivity,itisbutlogicalthattheActprovidesforspecialfundsatthenational,state and district levels and also mandates thatevery Ministry/Department at the national andstatelevelshallmakespecificfinancialprovisionsfor undertaking measures related to disastermanagement.

6.6.1 Financing Arrangement Prior to the Disaster Management Act, 2005

The system of financing disaster management inIndia has evolved over time. In recent decades,it has been shaped by the recommendations ofsuccessive FCs constituted under Article 280 oftheConstitutionofIndia.

6.6.1.1.The recommendations of the FCshave been based on the principle that financialassistancetotheStatesshallbelimitedtoprovidingimmediate gratuitous relief to the victims of

94


naturalcalamitiesandtorestorepublicutilitiessothataffectedpersonsandcommunitiesareabletorestart their economic activities.The objective ofsuchassistance isneither tocompensate for theirloss nor to restore damaged assets to their pre-disaster state; the latter is expected tobemet bytheStatefromitsownresourcesorfromthefundsavailableundervariousPlanschemesof theGoI.Thislargelyrelief-centricapproachtothefinancingarrangementdidnotaddressissuesofprevention,mitigation,andpreparedness.

6.6.1.2 The First FC (1950-55) did not makeany recommendation regarding the financingof relief expenditure of States. The Second FC(1955-60)tookcognizanceofthesubjectsuo motu. It introduced the concept of Margin Money tobe allocated to the States as a separate fund formeeting the expenses brought upon by naturalcalamities. The Margin Money was broadlycalculated on the average annual expenditureover thepreviousdecade. Thebalance fundaftermeetingtheexpenseswastobe‘investedinreadilymarketable government securities so that theymaybeavailablewhenneeded,withouttheStatehaving, except in abnormal circumstances, tocurtail other expenditure or approach the Unionforassistance’.7IncasetheexpenditurebyaStateexceededitsMarginMoney,CentralAssistancetotheextentof75percent(50percentasloanand25percentasgrant)wasmadeavailable.

6.6.1.3 TheFCsuptotheEighthonecontinuedwith the Margin Money concept with somemodificationsfromtimetotime.Forexample,theThirdFC(1960-65),withoutspecificallyawardinganyMarginMoney, included the itemunder thegeneral‘Grants–in-AidtotheStates’.TheFourthFC (1965-70) did not recommend any changeapartfromre-fixingtheMarginMoney.TheFifthFC (1970-75) recommended that the Central

7ReportoftheSecondFinanceCommission,p.64

assistance of 75 percent should be given entirelyintheformofgrant.TheSixthFC(1975-80),forthe first time, had a specificTOR to ‘review thepolicyandarrangementsinregardtothefinancingof relief expenditure by the States affected bynatural calamities and examine the feasibilityof establishing a National Fund to which theCentral and State Governments may contributea percentage of their revenue receipts’.The SixthFCdevotedanentirechapter to thefinancingofrelief expenditure, which became the practice forsubsequentFCs.ItexaminedtheideaofaNationalFundforCalamitiesbutfoundthatitwasneitherfeasible nor desirable, mainly due to oppositionfromamajorityofStates.TheSeventhFC(1980-85) made a distinction between calamities ofdifferent types, distinguishing between droughtsontheonehandandflood,cycloneandearthquakeon the other. The distinction was made on thebasis of the nature of events and the type ofmeasures required for response.The Seventh FCrecommended that in the event of drought, theexpenditureofaState,overandabovetheMarginMoney,hadtobefundedoutofacontributionfromthe Plan outlay only. As regards expenditure onrepairs and restoration of public works followinga flood, cyclone or earthquake, which was inexcess of a State’s Margin Money, the CentralAssistancewastobe inthenatureofanon-Plangrant not adjustable against the Plan. It furtherrecommendedthatatthetimeofacalamityofrareseverity, the Central Government could extendassistancetotheStateconcernedevenbeyondtheschemesuggestedbytheCommission.TheEighthFC (1985-90) recommended the continuation ofthe scheme suggested by theSeventhFCwith amodification that a higher quantum of MarginMoney be fixed for the States and for damagecausedbyfiretobetreatedonthesamefootingasflood,cycloneandearthquake.

6.6.1.4The Ninth FC (1990-95) made path-breaking recommendations which completely

95


replaced the ‘existing arrangements of financingrelief expenditure involving the provision ofMarginMoney,preparationofStates’memoranda,visitsofCentralteamsetc.,byaschemewhichisqualitatively different in the sense that generousfundsareplacedatthedisposalofStatesandtheyare expected to look after themselves in almostall situations’.8 A Calamity Relief Fund (CRF)was constituted for each State, with the CentralGovernment contributing 75 percent and theState concernedcontributing the rest25percent.The Fund was to be kept in a nationalised bankand operated under the control of a committeeheadedbytheChiefSecretary,whichwoulddecideallmatters connectedwith thefinancingof reliefexpenditure.AnExpertGroupconstitutedbytheGoIwouldmonitortheutilisationoftheFundandadvisetheStateonitsoptimalutilisation.

6.6.1.5 TheTenthFC(1995-2000)recommendedthe continuation of the CRF with somemodifications. The Eleventh FC (2000-05) alsorecommended the continuation of the CRFscheme formeeting theexpenditureofprovidingimmediate relief to the victims of a cyclone,drought,earthquake,fireorhailstorm.Expenditureon the restoration of infrastructure and othercapitalassets,exceptthoseintrinsicallyconnectedwith relief operations and connectivity with theaffected area andpopulation,wouldbemet fromthePlanfundsonpriority.

6.6.1.6 The Tenth FC had considered the issueof a calamity of rare severity and concluded thatsuch a calamity would have to be adjudged on acase-to-case basis taking into account, inter alia,the intensity,magnitudeandimpactof theevent,the level of assistance required, the urgency ofrequirement,andsuchotherfactors.Onceacalamitywas deemed to be of rare severity, it would haveto be managed with the Centre’s assistance.The

8ReportoftheNinthFinanceCommission,para6.17

CommissionproposedthatinadditiontoCRF,aNationalFundforCalamityRelief(NFCR)shouldbecreatedtowhichtheCentreandStatesshouldsubscribe. It would be managed by a NationalCalamity Relief Committee and represented byboththeCentreandStates,headedbytheUnionAgricultureMinister andcomprising theDeputyChairman of the Planning Commission, twoUnion Ministers and five Chief Ministers to benominatedbythePrimeMinisterbyrotation.Theguidelines would be prepared by the Ministry ofFinance and audited by the CAG.The EleventhFC reviewed the scheme of NFCR and foundthattheentirecorpusoftheFundwasexhaustedin three years. It concluded that the existence oftheFundencouragedrepresentationsforassistancefrom States even when a calamity could be metfrom their own resources. The Eleventh FCreviewedtheschemeofNFCRandrecommendeditsdiscontinuation.Initsplaceitrecommendedasystemwhichwouldmakeitpossibleforabodyofexperts to take suo motu cognizance of a disasterofrareseverity.TheEleventhFCwasoftheviewthat in the event of a calamity of rare severity,CentralGovernmentassistanceshouldbefinancedthroughthelevyofaspecialsurchargeonCentraltaxes for a limited period; this collection wouldbe kept in a separate fund called the NationalCalamityContingencyFund(NCCF).Theinitialcorpus of Rs. 500 crore would be contributed bytheGoIandthereafteritwouldbesupplementedbyproceedsfromthespecialsurcharge.TheTwelfthFC (2005-10) extended the list of calamities tocoverlandslides,avalanches,cloudburstsandpestattacks.

6.6.1.7 The Thirteenth FC (2010-15) observedthatalltheprovisionsoftheDisasterManagementAct,2005,hadbeennotifiedbytheGoIwiththeexceptionofthoserelatingtoSections46and47dealing with the creation of the NDRF and theNDMF. The TOR required the FC to examinetheissueoffinancingdisastermanagementinthe

96


context of these Funds as well. Accordingly, theEleventh FC examined the issue in detail, basedonconsultationswithvariousstakeholdersandat

thesametimetakingintoaccounttheexperiencesof other countries. Among other things itrecommendedthefollowing:

• The CRF be merged into the SDRF of therespectiveStateandtheNCCFintotheNDRF.The contribution to SDRFs was pegged at aratioof75:25between theCentreandgeneralcategory States; at 90:10 between the CentreandspecialcategoryStates.

• ThebalancesasonMarch31,2010,under theNCCF and State CRFs be transferred to theNDRFandrespectiveSDRFs.

• Mitigationandreconstructionactivitiesbekeptout of the schemes funded throughFCgrantsand be met out of overall development PlanfundsoftheCentreandStates.

6.6.1.8Broadly,existingfinancialarrangementsfor disaster-related expenditures in India whichpre-datetheDMAct,2005,areasfollows:

• TheconstitutionofCRFineachState,with75percent of the funds coming from the Centrein the form of non-Plan grants and the StateGovernment contributing the remaining 25percentoftheFund.

• A provision for the NCCF to meet reliefexpenditures in excess of the State’s CRF,subjecttotheassessmentofdamagesandlossesinadisastereventbytheGoIanditsapprovalthroughaHighLevelCommitteeoncalamityrelief.

• The GoI provides resources for public worksprogrammes through the MGNREGS andother schemes as an alternative to gratuitousrelief.TheGoIalsoprovidessomeresourcesforrepair and reconstructionofgovernment assetsasperestablishednorms.

• The GoI provides additional funds to StatesthroughbudgetaryprovisionsorPlanassistanceor through borrowings from internationalfinancialinstitutions,apartofwhichissubsidisedbyit.Suchassistanceisprovidedintheeventofcatastrophiclosses.

• In view of the prolonged impact of droughts,thereisanacknowledgementoftheneedforittobeeffectivelyaddressedthroughreliefworksandthereleaseoffoodgrainstotheStatesfordistributionamongthedroughtaffected.

These financial arrangements for disaster relief,however, did not include any provision for long-term recovery andmitigation.The lackof a fundclearly earmarked for mitigation was consideredoneoftheglaringshortcomingsofthesefinancialarrangements. This could be attributed to animplicit assumption that such expenditures needto be supported through existing developmentalschemes.

Box 6.3: fInAncIng ARRAngeMenTs PRIoR

To The AcT

• In recent decades the financing arrangement for disaster management in India has been shaped by the recommendations of successive fcs.

• The second fc introduced the concept of the Margin Money scheme and central Assistance.

• The ninth fc introduced the concept of the calamity Relief fund. The Tenth fc proposed, in addition, a national fund for calamity Relief.

• The eleventh fc recommended the creation of the national calamity contingency fund in place of the national fund for calamity Relief.

97


6.6.2 Financing of Disaster Management as Envisaged by the Act

The Act contains several sections relating to thefinancing of disaster management. The structureof financing is designed with the objective ofaddressingdisasterriskreductionthrougheffectiveresponse and sustained measures for prevention,mitigation and preparedness in a holisticframework.TheActhasmadeacleardemarcationbetweenresponseandmitigationfunding,therebyacknowledging the inherent distinction betweenexpenditurerequirementsforresponseduringandafteradisaster,andformitigationduringnormaltimes.

6.6.2.1Atthenationallevel,theActprovidesfortwoFunds,namely,theNDRF(Section46)andtheNDMF(Section47).TheNDRF,tobeusedfor ‘meeting any threatening disaster situationor disaster’, will comprise two components:an amount deposited by the GoI after dueappropriation made by Parliament by law andothergrantsordonationsmadebyanypersonorinstitutionforthepurposeofdisastermanagement.TheAct laysdownfortheResponseFundtobeavailable to the NEC for meeting the expensesof emergency response, relief and rehabilitation,accordingtotheguidelineslaiddownbytheGoIinconsultationwiththeNDMA.

6.6.2.2 TheNDMFhasbeenprovidedexclusivelyfor the purpose of mitigation and is to be usedonly for mitigation projects. The corpus of theMitigation Fund could be provided by the GoIafterdueappropriationmadebyParliamentbylaw.ItistobeappliedbytheNDMA.

6.6.2.3 TheActalsoprovidesforsimilarFundsatthestateanddistrictlevels(Section48).TheSDRFshall be available with the SEC for emergencyresponse,reliefandrehabilitationatthestatelevel,while the SDMF shall be made available to theSDMA for undertaking mitigation projects. TheActenjoinsupontheStateGovernmentstocreatesimilarFundsatthedistrictlevel.TheDDRFandtheDDMFwouldbemadeavailabletothedistrictauthoritiesrespectivelyforresponseandmitigationpurposes.

6.6.2.4 The Act also mandates every Ministry/Department of Central and State Governmentsto provide funds from its annual budget for thepurposeofcarryingoutactivitiesandprogrammessetout in itsdisastermanagementplan(Sections37, 40 and49).At the timeof a severe calamity,the Act authorises the Disaster ManagementAuthoritiesatthenational,stateanddistrictlevelstosanctionemergencyprocurementofmaterialsorimmediateapplicationofresourcesforrescueandreliefpurposes,waivingstandardprocedures.

Box 6.4: fInAncIng MechAnIsM envIsAgeD by The AcT

• Unlike earlier arrangements focusing on response and relief, the Act envisages financing arrangements for both response and mitigation activities.

• At the national level, the Act provides for two funds: the nDRf and the nDMf.

• The Act provides for similar funds at state and district levels.

• The Thirteenth fc recommended that the cRf be converted to the sDRf of the respective state, and the nccf to the nDRf.

• The national Mitigation fund is yet to be created. so far only five states, namely, bihar, karnataka, kerala, Maharashtra and Uttarakhand have created state Disaster Mitigation funds.

• District level funds have not been created as yet.

98


6.6.3 Views of Stakeholders during Consultations

The issues regarding the financing arrangementswere discussed during the consultations withthe States/UTs, Ministries of the GoI and otherstakeholders. As expected there were differingviewsandperceptions.

Box 6.5: vIews of sTAkeholDeRs on

fInAncIng ARRAngeMenTs

• At the national level, there is a need for both funds.

• At the state level, there is a need for the Response fund. As regards the sDMf, some states felt that there was no need of a separate Mitigation fund because the Departments concerned have their own budget provisions. other states expressed the need for a Mitigation fund.

• There were divergent views on district level funds. some participants felt there was a need for both funds at the district level. some states expressed the view that districts do not have the administrative and operational capacity to manage such funds. There was another suggestion that districts could have predefined shares from the state fund to be placed at their disposal as happens with other developmental programmes.

6.6.3.1 As regards the national level Funds forresponse and mitigation, the States/UTs feltthere was a need for both Funds. During theconsultation, the representative of the FinanceMinistry (Department of Expenditure) pointedout that there was no need to create a separateMitigation Fund at the state and district levelsbecause various Departments can make budgetprovisions.ThePlanningCommission, in a letterdatedJuly19,2012,haspointedoutthatthematterregardingtheMitigationFundatthenationallevelwouldbeexaminedfurtherafterthefinalreportof

theWorkingGroupoftheMHAisreceived.

6.6.3.2 As regards state level Funds there wasgeneral agreement on the need for SDRF. TheThirteenthFChasalso recommendedconvertingtheCRFintotheSDRF.AsregardstheMitigationFund, someStates stated that therewasnoneedforaseparatefundformitigationatthestatelevelbecausethedepartmentsconcernedhavetheirownbudgetprovisions.OtherStatesexpressedtheneedforaStateMitigationFund.SofaronlytheStatesof Uttarakhand, Maharashtra, Karnataka, KeralaandBiharhavecreatedaMitigationFund.

6.6.3.3 There was a greater divergence of viewsin regard todistrict levelFunds. In thecourseofregional consultations,manyStates expressed theopinion that that there was no need for districtlevelFunds.TherecouldbeapredeterminedshareforeachdistrictfromthestatelevelFund.SomefelttherewasaneedforbothFundsatthedistrictlevel soas toensure theautonomyandflexibilityof the DDMA. Others suggested that the StateGovernment should have the discretion onwhetherornottosetupdistrictlevelresponseandmitigationfunds.

6.6.3.4 During the national level consultation,someparticipantsmadeanobservationthattherewasaneedforbothresponseandmitigationfundsatthedistrictlevelandthesecouldbeadministeredthrough prescribed procedures and guidelines.For, it is the district which is the operationallevel as far as disastermanagement is concerned.AfewStatespointedout that thedistrict shouldhave the administrative and operational capacityto administer and utilise such funds. There wasanother view that given the requirements ofadditionalauditandadministrativeprocedures,theexerciseofcreating,maintainingandadministeringresponse/mitigation funds at the district levelcouldleadtooperationalproblems.Alternatively,itwassuggestedthatfundsformitigationrequiredat

99


thedistrictlevelcouldbemadeavailablethrougha‘schemeroute’insteadofa‘fundroute’.

The Task Force also had a separate interactionmeetingonDecember14,2012,with theDistrictCollectorsofselecteddistrictsinordertogetmorefeedbackontheroleoftheDDMAaswellasthecreation of funds at the district level.The generalview among the District Collectors was thatdistrictsneededbothresponseandmitigationfunds,butthesefundsshouldbeoperatedatthestatelevel,with separate allocations for various districts. Anobservationwasmadethatsometypesofmitigationactivities, particularly those of a structural nature,couldinvolvemoretechnicalexpertiseandmaybespread over more than one district. On the otherhand,activitiessuchastraining,awarenessgenerationandvulnerabilitymappingcouldbetakenupatthedistrictlevel,andsomefundscouldbeearmarkedforthispurpose.Anothersuggestionthatcameupwasthattherecouldbeanarrangementofnon-lapsablefundsatthedistrictlevelwithamechanismsimilartothatoftheDRDA,sothatdistrictauthoritiesareabletotakeupmeasuresforpreparednessandsometypesofmitigation.

6.6.3.5 During consultations it was pointed outthat the identical abbreviations of the NationalDisasterResponseFundandtheNationalDisasterResponse Force created confusion. There was aneedtochangetheFund’snomenclature.Hence,inSection46(1), theNationalDisasterResponseFundmayberenamedas‘NationalResponseFundforDisasters(NRFD).Similarly,inSection48,theStateDisasterResponseFundmayberenamed.

Section ii

6.6.4 A Review of the Provisions of the Act and Formulating the Recommendations

6.6.4.1 Sections46and49providefortheNDRFandSDRF.SuchFundshavealreadybeencreated

by converting the existing NCCF and CRF. Asregardsthenomenclatureoftheresponsefund,withaviewtoremovingtheconfusionbroughtuponbytheResponseFundhavingidenticalabbreviationsastheResponseForce,theTaskForcerecommendsthatinSection46theexpression‘NationalDisasterResponseFund’maybechangedto‘NationalFundfor Disaster Response’ (NFDR). Similarly, inSection48,theexpression‘StateDisasterResponseFund’maybechangedto‘StateFundforDisasterResponse’(SFDR).

6.6.4.2TheDMAct,2005,suggeststhesourceof funding for the National Response Fund andtheNationalMitigationFund.ItsuggeststhattheParliamentwouldprovidefortheseFundsthroughappropriation. It also includes any grants thatmaybemadebyanypersonorinstitutionforthepurposeofdisastermanagement.However,thereisno specificmentionof the criteria tobe adoptedinfixingthesizeofcontributiontotheFunds.TheAct also does not specify the sources of fundingforresponseandmitigationfundsatthestateanddistrict levels.TheimplicitassumptionisthattheStategovernmentwillmakeaprovisionforthesefunds.

6.6.4.2.1 Nowthat theCRFhasbeenmergedinto the SDRF, the allocation made through theFC’srecommendationswouldcapitalisetheSDRF,thoughitisnotspecificallymentionedintheAct.However,itisnotyetclearhowtheDDRFwouldbe capitalised. No state government has set updistrictfunds,letaloneprovidingfundsforthem.This isone importantpartof theDMAct,2005,whichhasnotbeenimplementedatall.Thisstateofaffairsexistsevenasitisrecognisedthatitisthedistrictadministrationwhichneedsimmediateanddirect access to resources since it implements allthe response measures.The discussion on districtfundsfollowslaterinthischapter.

6.6.4.2.2Itwouldbeworthwhiletomentionthe

100


sourcesoffundingintheActortherulesfromthepointofviewofreplenishingthefundonaregularbasis. The FC’s recommendations are generallymandatoryinnatureandprovideaverysteadyandpredictable source of funding for disaster-relatedexpendituretotheStatesthroughtheSDRFandNDRF.Thereisaneedtocontinuethemechanism.

6.6.4.2.3 There is a view that the FC shouldcease to consider allocations for disaster-relatedexpenditure,andthedecisionshouldbelefttotheNDMA.However,theFCbringsanexternalandindependent perspective on the issue of disastermanagement financing. Further, it also has theadvantageofreviewingthesystemafteragapofafewyears,whichishelpfulinassessingtheemergingdemands upon the disaster management system,identifying the ineffective financing features andreplacingthem.

6.6.4.2.4 TheTask Force feels that successiveFCs should continue to consider the issue ofdisastermanagementfinancingperiodically.Itwillprovideanelementofcertaintyandpredictabilityto disaster management financing at the stateand national levels. Further, many innovationsintroducedbysuccessiveFCsmaygetreflectedinthe financing mechanism. In addition, there is aneedtospecifyhowthesefundswouldbemanagedandspent.Theexistingprovisionsareverysketchyand need articulation, may be through rules, toensure transparency and accountability in themanagementofthesefunds.

6.6.4.3 In the Philippines, a new legislationhas completely revamped the scheme of disastermanagementfinancing.Theold legislationof thePhilippines allocated its disaster-related budgetprimarily for post-disaster response, throughcalamityfundsthatcouldbeaccessedonlyaftertheoccurrence of a disaster. Money for preparednesswaspaidoutonlyonthebasisofanofficialstateof calamity. There was neither any mandatory

requirement relating to local government unit(LGU) expenditures on risk reduction nor anydedicated funding. The new legislation identifieshow funds at thenational and local levelswouldbe mobilised, and how they would be managedandspentatdifferentlevels.9Theexactprovisionsrelated to disaster management financing arementionedintheboxbelow:

9 Source: http://download-88flood.www.gov.tw/otherReC/file/045_RA%2010121.pdf,pp.31-32

Box 6.6: fInAncIAl PRovIsIons foR

DIsAsTeR MAnAgeMenT In The RecenT

DIsAsTeR MAnAgeMenT legIslATIon In

The PhIlIPPInes

SEC. 21. Funding of Disaster Risk Management Activities at the Local Level

The present local calamity fund shall henceforth be known as the local Disaster Risk Management fund (lDRMf). At least five percent (5%) of the estimated revenue from regular sources of the local government unit shall be set aside as lDRMf to support disaster risk reduction or mitigation, prevention and preparedness activities for potential occurrence of disasters, as well as for disaster response, rehabilitation, reconstruction and other works or services in connection with disasters or calamities, whether natural or human-induced, occurring within the local government unit or other areas, and for the payment of premiums on calamity insurance.

Unexpended lDRMf shall accrue to a special trust fund solely for the purpose of supporting disaster risk management activities of the lDMcs within the next two years. Any such amount still not fully utilised after two years shall revert back to the general fund and will be available for other social services to be identified by the local sanggunian.

SEC. 22. National Disaster Risk Management Fund

• The present calamity fund appropriated under the annual general Appropriations Act shall

101


6.6.4.4 IntheIndiancontext,theimportantissueisregardingtheNationalMitigationFundandStateMitigationFund.Statemitigationfundsaretobecreatedbytherespectivestategovernments. It ismoreimportanttoaddresstheissueoftheNationalMitigation Fund.There has been a great deal ofdiscussion and interaction among the Ministriesconcerned and the Planning Commission. Butas yet there is no clarity about the nature of theMitigationFund,itspurposeandutilisation.

6.6.4.4.1Governmentagencies,bothatthenationalandstatelevel,withtheexceptionoftheNDMA,havenotshownmuchenthusiasmfortheconceptofamitigationfund.TheMHAhassuggestedthattheNDMFshouldbefundedthroughaseparatebudget head under the Ministry’s budget on thePlanside.TheMHAhasalsosuggestedthatsomepercentage of funds under Centrally SponsoredSchemes (CSS) shouldbeearmarked fordisastermitigation/long-term disaster preparedness. TheDepartmentofAgricultureandCooperationisthenodaldepartmentforthemanagementofdrought,pest attack, cold wave, frost and hailstorm. TheDepartment has referred to the recommendationoftheTwelfthFCthatwhiledisasterpreparednessandmitigationareimportant,theyneedtobebuiltintoStatePlans,ashasbeenthepractice,andthatthe focusof theCRF (SDRF) /NCCF (NDRF)mustbeprimarilyoncalamityrelief.Withregardtomitigation, theMinistryofFinancehas statedthat it should be a part of the overall planningprocess and that the creation of the Fund wouldadd another layer of approval for the relevantMinistriesandDepartments.Ontheotherhand,the NDMA has suggested the creation of theNDMF,asrequiredundertheDMAct,2005,formitigation projects in high priority areas, to betakenupbytheNDMAitself.10

6.6.4.4.2 The Second Administrative ReformsCommission deliberated the issue of setting upa National Mitigation Fund. Its views were asfollows:11

“Long term mitigation measures, being capital intensive, have to be carried out as part of the national plan or the state plan of the concerned Ministry/

10ReportoftheThirteenthFinanceCommission,Chapter11on“DisasterRelief ”,pp.191-92.11 Third Report of the Second Administrative ReformsCommission: Crisis Management, From Despair to Hope,2006,Chapter7,para7.2.3,p.97

henceforth be known as the national Disaster Risk Management fund (nDRMf) and it shall be used for disaster risk reduction or mitigation, prevention and preparedness activities such as but not limited to training of personnel, procurement of equipment, and capital expenditures. It can also be utilised for relief, rehabilitation, reconstruction and other work or services in connection with natural or human-induced calamities which may occur during the budget year or those that occurred in the past two (2) years from the budget year.

• The specific amount of the nDRMf and the appropriate recipient agencies and/or local government units shall be determined upon approval of the President of the Philippines in accordance with the favorable recommendation of the nDMc.

• of the amount appropriated for nDRMf, thirty percent (30%) shall be allocated as Quick Response fund (QRf) or stand-by fund for relief and rehabilitation programs in order that situation and living conditions of people in communities or areas stricken by calamities, epidemics, or complex emergencies, may be normalised as quickly as possible.

• All departments/agencies and local government units that are allocated with DRM fund shall submit to the nDMc their monthly statements on the utilisation of DRM funds and make an accounting thereof in accordance with existing accounting and auditing rules.

102


Department. Modalities of integrating projects taken up under the Mitigation Fund and other projects taken up under different schemes would have to be worked out. NDMA may be requested to finalise such modalities and also recommend guidelines for use of the Mitigation Funds at the National, State and District levels.”

Itsrecommendationsareasfollows:

“Both the funds (National Disaster Mitigation Fund and the National Disaster Response Fund) may be operationalised from April 1, 2007 with an initial annual contribution of Rs. 5,000 crore each from the Government of India. This would be in addition to CRF and NCCF for the present. The CRF and NCCF would cease to exist at the end of the award period of the Twelfth Finance Commission.

NDMA may recommend to Government of India the quantum and criteria of assistance and conditions of release from the two new funds as well as manner of replenishment of these funds from different sources.” 12

Though the Second Administrative ReformsCommissionrecommendssettingupaMitigationFund with an initial annual contribution of Rs.5,000 crore, it has not suggested the kind ofprojectsonwhich these fundswouldbe spent. Ithas left thedetailsoftheFundtobeworkedoutbytheNDMA.Atthesametime,ithassuggestedthat“longtermmitigationmeasures,beingcapitalintensive, have to be carried out as part of theNationalplanor theStateplanof theconcernedMinistry/Department.”IfmitigationmeasuresaretobeimplementedaspartofthenationalorstatePlan,howcan theybe supportedbyamitigationfund?TherecommendationsmadebytheSecondAdministrativeReformsCommissionarenotvery

12 Third Report of the Second Administrative ReformsCommission: Crisis Management, From Despair to Hope,2006,Chapter7,para7.2.6,pp.97-8.

clear with regard to the source of funding andmodeofimplementationofmitigationmeasures.

6.6.4.4.3 TheThirteenthFChasalsodiscussedthis issue in its report. It has observed thatmitigationshouldbeapartofthePlanprocessandthattheexpenditurerequiredshouldbemetoutofthePlansourcesoftherespectiveMinistriesoftheUnionandStates.Ithasobserved:

“As far as disaster mitigation is concerned, we believe that it should be a part of the plan process and that the expenditure therein should be met out of the plan resources of the respective ministries of the Union and the states. This is also advisable as there are already schemes at the central as well as state levels that are targeted towards mitigation, in areas such as drought-proofing, flood and water management, soil erosion and promotion of earthquake-resistant structures. While we realise that the current levels of funding of these schemes may not be adequate, it is our view that this aspect is best left to be decided by the Planning Commission and the NDMA.” 13

6.6.4.4.4 Though the Eleventh Five YearPlan document emphasises the necessity ofmainstreaming disaster management intodevelopment planning, it does not discuss the‘Mitigation Fund’. The Plan document seems totake a familiar approach that every developmentplanofaMinistry/Departmentshouldincorporateelements of impact assessment, risk reduction,and the ‘do no harm’ approach. It further statesthat State Governments need to give priority tohazard identificationand riskassessment in theirPlans and schemes. On financing, it states thataportionofPlan funds shouldbe earmarked forefforts that, directly or indirectly,help indisastermanagement.Itsuggeststhateveryprojectshould

13ReportoftheThirteenthFinanceCommission,Chapter11,para11.83,p.198.

103


provide adequately for disaster mitigation andmanagement.Itclearlyarticulatesaproject-basedapproachtomitigationratherthanonedrivenandsupportedbya‘MitigationFund’.14

6.6.4.4.5InacommunicationdatedJuly19,2012,to theTaskForce, thePlanningCommissionhasobservedasfollows.

“NationalDisasterMitigationFund(NDMF): The Working Group on Disaster Management constituted by the Planning Commission in the context of the 12th Five Year Plan, while recommending an outlay of Rs. 15,060 crore, has observed that there is a strong case for setting up an NDMF on the lines of the non-lapsable pool of resources for DONER, and that a start could be made by providing a plan outlay for the NDMF which can be in the form of a National Programme covering ‘Other Disaster Management Projects’ included in the Working Group Report.

The Draft Report of the Working Group forMHAwhichalsocoversdisastermanagement,hasrecommendedatotaloutlayofRs.5878croreforvarious disaster management schemes of MHA,butitdoesnotincludeanyspecificreferencetotheNDMF.However,MHAhadseparatelyconveyedto Planning Commission in June 2012 that theNDMF may be constituted by encompassing allthedisastermitigationplanschemesforthe12thPlan,exceptexternallyaidedprojects.

Consideringthesignificanceofsettingupa fundexclusively for the purpose of disaster mitigationandalsosinceconstitutionoftheNDMFisalegalrequirementundertheDisasterManagementAct,2005,in-principle,PlanningCommissionsupportsconstitution of an NDMF. However, the matterneeds to be examined in detail, keeping in viewthe recommendations of the Working Group on

14ReportoftheThirteenthFinanceCommission,Chapter11,para11.83,pp.198-99.

Disaster Management and the Working GrouponMHAaswellastherecommendationsoftheFinanceCommission inthisregard,asalsootherprovisionsavailableintheGovernmentfordisasterrelated activities such as the Prime Minister’sNational Relief Fund and Calamity Relief Fund(CRF).Accordingly, thematterwillbeexaminedfurtherafterthefinalreportoftheWorkingGrouponMHAisreceived.”

6.6.4.5 TheTaskForceisawareoftheimplicationsofsettingupaseparateFund:

• There couldbe a reluctance to set up anynewFund on considerations of financial disciplineand accountability to Parliament through thebudgetaryprocess.

• Similarly, there could be some hesitation incommitting scarce resources in open-endedschemes,whichcanhaveafinancialimplicationthatisnoteasilyquantifiable.

• Thirdly, there could be a view on account ofsome existing mitigation schemes, like theFloodManagementProgrammeorthedrought-proofing component under the MNREGSbeing implemented by various Ministries andDepartments. There may be an apprehensionthat the operation of the proposed MitigationFund may result in duplicating these existinginitiatives.

• Fourthly,therecouldbeaviewthattheoperationofsuchaFundmaymilitateagainsttheplanningprocess and concerns of inter-State budgetaryallocations.

Afterdetaileddeliberations,theTaskForceisoftheviewthat these reservationsneed tobeovercomein the overall interests of making India moredisaster-resilient. The argument of accountabilitytoParliamentthroughthebudgetaryprocessdoesnotholdgood, for theconstitutionofaNationalMitigation Fund is very much in tune with the

104


requirement of accountability to the Parliament,as it isastatutoryresponsibilitynowenjoinedbythe Disaster Management Act, 2005, which wasduly enactedby theParliament.Byno stretchofimaginationdoestheoperationofaseparateFundimplyanyfinancialindiscipline,asitwouldcontinuetobeoverseenbytheParliamentaswellasbythefunctionsofotherauthorities like theCAG.It isa fact that disaster management in India startedwellbeforetheDMAct,2005,cameintoforce–as evident from existing schemes, – more in thenature of disaster mitigation, being implementedthrough Central, Centrally Sponsored as well asStateSchemes.Here it is important to state thattheideaofconstitutingaseparateFundis:

• not to affect the operation of ongoingprogrammesadversely

• not even to create a parallel implementationmechanism

• nottobringallsuchschemesunderoneumbrella

Theobjectiveof theNDMFwouldbetofinancemitigation activities that cut across sectors,departmentsanddisciplines,forinstance,capacitybuilding, insurance, and creating awareness,among others. This would be in addition to theprogrammes/schemes of various Ministries/Departments.Overaperiodoftime,itwouldhaveapositiveimpactonasignificantrangeofissues:

• The Fund would help the system developan overall mechanism for monitoring thepercentageandthemanneroffinancialresourcesbeingspentondisastermitigation.

• TheFundwouldhelpthenationaleconomyinsavingscarcefinancialresources.Forexample,animportant component of the Mitigation Fundcouldbeusedtoaugmentefforts for insurancecoverage of houses against damage due todisasters. That would help realise the concept

of risk transfer with more participation by theinsurancesector,withbetterandassuredbenefitsto the victims of disasters, and that, in turn,would help reduce the tendency of devotingpreciousfinancialresourcesoftheStateinpost-disasterphases.

• The Fund would ensure better outcomes tocross-sectoralactivitiessuchascapacitybuildingandcommunityawareness.

• It is also relevant to recognise here that inter-Stateallocationofresourcesinthefieldofdisastermanagement is already structured in amannerthattakesintoaccountvulnerabilitytodisasters.For example, allocations under the NDRF arenot made on the basis of Gadgil’s formula oron the basis of percentage of families belowthepovertyline.Theyaremadeonthebasisofscrutinyof thefindingsofanInter-MinisterialCentral Team that is specific to a particulardisaster.Inthesamemanner,theNDMAshouldbeabletomakeinter-Stateallocations,basedonavulnerabilityassessment.Withoursuggestionregarding the reconstitution of the NDMA’scomposition,itwouldbeevenmorepracticaltooperatesuchamechanism.

Inviewofthesereasons,theTaskForceisoftheconsidered view that it is necessary to have theNDMF.NoamendmentisrequiredintheexistingprovisionoftheActinthisregard.Earlystepsneedto be taken by all concerned to ensure that thisstatutoryresponsibilityisdischarged.

6.6.4.6 It is alsonecessary tohave aSDMF.Nodoubt the departments concerned will makebudgetprovisionstoundertakeactivitiesincludedin their respective disaster management plans.Therewillbecertainactivitiesthatspandistrictsandsectors.Someaspectssuchascapacitybuilding,enforcement of various codes and regulations,studies and analysis cut across various areas,

105


districts, activities and sectors. Hence the Statesshouldcreatestateleveldisastermitigationfunds.

6.6.4.7At the district level, financial provisionsare required both for response and mitigation.However,thecreationofseparatefundsforeachdistrict unlike at the national and state levelmay not be feasible. This will require elaborateadministrative and audit procedures. Further,there could be a problem of limited resourcesverythinlyspread.Thestatelevelfundmayhaveearmarkedallocationsforvariousdistrictskeepingin mind their hazard and vulnerability profile.The mechanism for disbursement within theframework of the existing accounting procedureshouldbedevelopedsothatthefundisavailablewhenneeded.ItshouldbelefttotheStatetoworkout the mechanism either by creating separatefundsorbytransferringfundsas isdoneincaseof the DRDA or the Rashtriya Krishi VikasYojana.

6.6.4.7.1The13thFCrecommendsasfollows:

“11.96 In our opinion, the provision to mandatorily constitute DDRFs under the DM Act merits a review. If DDRFs were to be maintained in the manner of the NDRF or the SDRF, states would lose the flexibility of pooling of resources for calamity relief and such an approach would only lead to fragmentation of resources without any tangible benefit. Hence, it may be left to the states to decide on whether they should constitute DDRFs or whether funds could be effectively routed to each district with the approval of SECs from the SDRF in the manner currently being followed under the CRF. Section 48(1) of the DM Act may, therefore, need to be amended to provide for such an option to the states.” 15

15ReportoftheThirteenthFinanceCommission,Chapter11,para11.96,p.200.

6.6.5 Some Limitations of the provisions

6.6.5.1ConcurrentJurisdiction

As the provisions of the Act suggest at present,all the funds appear to exercise concurrentjurisdiction.ThenationalfundscanbespentintheStatesanddistrictsforthesamepurposeforwhichthe State or district funds can be spent.There isnoprovisionintheActthroughwhichconditionsorsituationsarespecifiedforassigningjurisdictionorprioritytofundsatdifferentlevels.PriortotheAct,itwasclearwhenandhowtheNCCFwouldbeusedforsupplementingtheCRF.However,theprovisions of the Act do not suggest how thesefundsatnational,stateanddistrictlevelswouldbelinked, thusavoidinganoverlap in theallocationofresources.Itcouldprobablybedonebyframingguidelines,butitisdesirablethattheActmakesaclearprovision so that anyoverlaponaccountofconcurrentjurisdictionofthesefundsisminimised.

6.6.5.2AdditionalCentralAllocation

At present, no specific mechanism or scheme isavailable in the DM Act, 2005, to support post-disaster recovery and reconstruction. The GoIprovidesAdditionalCentralAssistancetocertainStateswhichhaveexperiencedlarge-scaledisasterssuchas2001Gujaratearthquake,the2004IndianOceantsunami,the2008Kosifloods,andthe2009cyclone Aila. The Additional Central AssistancemarksasignificantassistancetoStatesconcernedfor recovery and reconstruction programmes, forwhicharegularprovisioncanbemadeintheDMAct.

6.6.5.3InternationalNormsforDisasterManagementFinancing

Theprovisionofadequatefinancialresourcesisoneof the most important indicators of governmentcommitment to disaster risk reduction. Theintegration of disaster risk concerns intogovernment budgets should be tackled from two

106


angles, ensuring that levels of public expenditureonriskreductionaresufficientandthatthereareadequate financial arrangements to manage theresidualrisk.However,asreportedingovernmentHyogo Framework progress reports in 2011, thelackofefficientandappropriatebudgetallocationsremainsoneof themajor challenges for effectivedisaster risk reduction legislation (Llosa andZodrow,2011).SouthAfricaandColombiaaretwoimportant examples of disaster-prone countries(see the box below) which have made statutoryprovisionsfortheallocationoffinancialresourcesintheirdisastermanagementlegislation,butcouldnotfindtheresourcestotranslatethemintoreality.Thereareimportantlessonsthatemergefromthe

experience of these two countries, which India’sDMlegislationshouldtakeintoaccount.

6.7 Recommendations on Financing Provisions of the Act6.7.1 AtthenationalleveltheNationalDisasterResponse Fund and the National DisasterMitigation Fund are required. The provisions ofSections46and47oftheActshouldberetained.However,thesourceofeachFundanditslinkagewiththerespectiveStateFundmaybespecifiedintheActorRules.

6.7.2 AttheStatelevelitisdesirabletohavebothFunds–theStateDisasterResponseFundandthe

Box 6.7: fInAncIng PRovIsIons foR DIsAsTeR MAnAgeMenT In soUTh AfRIcA AnD coloMbIA

In south Africa, eight years after the promulgation of the Act, most district municipalities had not established the centres required by the Act and did not have disaster risk reduction plans in place mainly due to a lack of resources to cover costs related to start-up, continuous operations, disaster risk reduction projects, response recovery and rehabilitation activities, and training and capacity building programmes which are specifically stipulated for funding in the framework.

Reasons for the lack of funding include a lack of clarity of the Act on the funding sources for developing and maintaining the centres it establishes at all levels and the management plans they are to prepare. Moreover, the Act and the framework do not provide adequate guidance to municipalities on funding arrangements for disaster risk reduction, response and recovery. Though the Act states specifically that the legislation must provide a framework within which the organs of the state may fund disaster management, with emphasis on preventing or reducing disaster risk, it is not clear which processes should be followed by municipalities to access funding, especially when it should be provided by the national or the provincial government. It is also not clear to what extent municipalities should fund disaster risk management out of their budgets.

similarly, in colombia, more than 80 percent of municipalities are able to assign only 20 percent of their resources that are not earmarked, to risk reduction and disaster response. because the law does not stipulate percentages and amounts, municipalities allocate minimal sums for disaster risk reduction given competing infrastructure and social spending needs. colombia‘s national fund for calamities lacks clear rules for capital accumulation and disbursement; its funding stems from unreliable sources and the national government has been reducing its budget allocation. As a result, actions by the national system for Prevention and Response to Disasters are limited, and the fund‘s resources are directed to emergency response rather than prevention.

The experiences of south Africa and colombia are replayed around the world. except for some high-income countries, governments report a lack of systematic policy or institutional commitment to providing dedicated or adequate resources for disaster risk reduction, in particular in the absence of legislation that makes financial allocations legally binding.

Source:LlosaandZodrow,2011,pp.8-9.

107


StateDisasterMitigationFund.ThesourceofeachFundanditslinkagewiththerespectiveNationalFundmaybespecifiedintheActorRules.

6.7.3 It is necessary to work out – throughrules or administrative measures – a mechanismorprocedure fordetermining the sizeandsourceoffundsfortheNDRFaswellastheSDRF.Forexample,theFCsmaybemandatedtodeterminetheseaspectseveryfiveyears.

6.7.4 For National and State Mitigation Funds,guidelines with respect to utilisation of fundsand identificationofprojectsmaybepreparedbythe NDMA in consultation with the PlanningCommission.

6.7.5 As regards district level Funds, the StateGovernmentmaydecidewhethertohaveresponseandmitigationfundsortoputinplaceaseparatemechanismfortimelyaccesstofinancialresourcesbyDistrictauthorities.Section48maybeamendedasdiscussedintheprecedingparagraphs.

6.7.6 In Section 46 the expression ‘NationalDisaster Response Fund’ may be changed to‘National Fund for Disaster Response’ (NFDR).Similarly, in Section 48 the expression ‘StateDisasterResponseFund’maybechangedto‘StateFundforDisasterResponse’(SFDR).

108

7.1 IntroductionThe DM Act, 2005, contains eleven chapters.Chapters2to9oftheActfocusonthenational,stateanddistrictlevelinstitutionalstructures,localauthorities,theNIDM,theNDRF,andfinancialaspects. Though the focus of these chapters ison institutional structures, there are severalotheraspects such as disaster management plans, rolesand responsibilities of various organisations, andthe powers and functions of various authorities.Theimportantprovisionsoftheabove-mentionedchaptersoftheActhavealreadybeendiscussedbytheTaskForce.InthischapterwemainlydiscusstheprovisionsoftheremainingthreechaptersoftheAct,namely,Chapters1,10and11,thoughsomemiscellaneousprovisionsofotherchaptersarealsodealtwith.Chapter1containspreliminaryaspectssuchasdefinitions.Chapter10providesforoffencesandpenalties.Chapter11 containsmiscellaneousprovisions such as those against discrimination;thepowersoftheCentralGovernmentandStateGovernmenttoissuedirections,makeregulationsand rules; the delegation of powers; and annualreports, among others. During the variousinteractions, stakeholders suggested changes tosomeof theprovisionsof theAct,particularly intheabovethreechaptersoftheAct.


• describes the issues raised by stakeholders onsomeoftheprovisionsinChapters1,10,11oftheAct

• discusses the suggestions of amendments in

certain provisions of the Act put forth bystakeholders

SectionII:

• enumerates the recommendations of the TaskForce

In addition, we discuss amendments to someSectionsofotherchaptersoftheActaswell.First,wewilldiscusstheviewsexpressedbythestakeholders.Thenweenumerateourrecommendations.

Section i

7.2 Views of Stakeholders during Consultations7.2.1 InSection2(d)oftheAct,theexpression‘disaster’isdefinedasfollows:

“disaster means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or manmade 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.”

During the regional consultations, manyparticipants suggested that the definition of‘disaster’maybemodifiedsoastomakeitgloballymore appropriate and acceptable. During the

Other Provisions of the Disaster Management Act, 20057

109

other Provisions of the Disaster Management Act, 2005

national consultation, too, some participantssuggested that the discussion should begin withthe definition of ‘disaster’. Consequently, in theeighthmeetingoftheTaskForce,thedefinitionof‘disaster’was takenupas a separate agenda item.One view was that the scope of ‘disaster’ shouldbe made more comprehensive; another view wasthat the definition should include an illustrativelist of disasters. After detailed discussions it wasdecidedthattherewasnoneedforanychangeinthe definition of ‘disaster’ in the Act. It was alsosuggestedthatanillustrativelistofdisasterscouldbedevelopedbytheNDMAandconveyedtoallconcernedthroughguidelines.

7.2.2 A consultation paper16 on man-madedisasters circulated by the Law Commission ofIndia comments on the definition of disasters intheAct.Itobservesthatthereisaneedtorecastthe definition as far as man-made disasters areconcernedso that theStateFundcouldbemadeavailable for providing immediate relief to thevictimsoflarge-scaleman-madedisasterswithoutany problem of interpretation. The expression“substantial loss of life or human suffering ordamageto,anddestructionof,property”indicatesthatman-madedisasterswhicharenotofseriousproportions – there being few casualties – willnotbecoveredbytheAct.Theconsultationpaperobserves that the said expression can be retainedsothatman-madedisastersofalessseriousnatureandintensitycanbeexcludedfromconsiderationsofgrantingreliefoutofstatutoryfunds.However,thelastlimbofthedefinitionneedstobedeletedas the expression“beyond the coping capacity ofthe community of the affected area” is not clear.It may unnecessarily constrict the scope of relieffor man-made disasters. Even after deleting thesame,thenormofsubstantiallossoflifeorhumansufferingordamagewouldstillbeapplicableand

16LawCommissionofIndia,ConsultationPaperonManmadeDisasters,para17.4,p.11.

thatwouldexcludeman-madedisastersoccurringonasmallscale.Theprima facieobservationoftheLawCommission,therefore,wasthatthelastpartof thedefinitionof‘disaster’ shouldbedeletedsothatthestringentstandard,whichmay,ifatall,beappropriateinconnectionwithnaturalcalamities,not be applied to man-made disasters. Themagnitude of disaster in terms of casualties andhumansufferingisnodoubtrelevant,butitshouldnotbe stretched too far.Relief fromStateFundscreatedundertheDMAct,2005,shouldbemadeavailable to the victims of man-made disasterswhicharefairlyintenseandsevere.Ifnecessary,theguidelinesfor judging“substantial lossof lifeandhumansuffering”,amongotherthings,canbelaiddown by the NDMA in consultation with StateAuthorities.

7.2.3 During a meeting of the Task Force, arelated issue regarding the recommendationsof various Finance Commissions came up fordiscussion. The FCs while recommending theamountoffundsforCRFandNCCF,alsoidentifycalamities which are to qualify for assistance.In other words, relief from the Fund is availableincaseof thosecalamitiesonly.Thedefinitionof‘disaster’intheDMAct,2005,ismuchwiderthanthecalamitiesidentifiedbytheFCs.Oneviewwasthat theActbeinga statute, itsprovisionswouldprevailovertherecommendationsoftheFCs.Allparticipants at the Task Force meeting were inagreementthatthedefinitionof‘disaster’providedinSection2(d)oftheActshouldremainasitwasandtherewasnoneedforanyimmediatechangeto it. If any problem arises in the context of thelimited scope implied by the recommendationsofFCs, itcouldbeaddressedthroughpolicyandadministrative measures. It was also felt that thesuggestions in theconsultationpaperof theLawCommissiontodeletetheexpression“beyondthecoping capacity of the community” need not beadoptedbytheTaskForce.

110


7.2.4 Someparticipantsduringtheconsultationsuggested that there was a need to include anddefine expressions such as accident, affected area,buildbackbetter,recovery,rehabilitation,calamity,climatechange,community,specialistresponseandthelike.Itwasalsosuggestedthatthechapterondefinitions should be more comprehensive andexhaustive.TheTask Force was of the view thatitwasrelevanttodefineonlythosetermsusedtoconvey a particular idea or meaning in the Act.Thefinaluptakeofthisisthatthereisnoneedtomodify definitions nor include additional termsunlesstheyarerelevanttotheAct,havespecialisedimplications or assume significance in terms ofproblemsofimplementation.

7.2.5 Anothersuggestionwhichcameupduringdiscussionwasthat,keepinginviewtheexperiencesof other countries, it would be worthwhile toinclude a provision of declaring disasters inthe DM Act, 2005. This would be useful whilehandlingresponseactivitiesandcarryingoutpost-disasterreconstruction.TheGujaratStateDisasterManagementAct,2003,containssuchaprovisionofdeclaringdisasters.However,otherparticipantswere of the view that such a provision in theAct would complicate matters and would createimplementationandoperationalproblems.

7.2.6 The distilled suggestions that emergedfromvariousconsultationsareasfollows:

• The Act should specifically mention women,children, thedisabled,andtheweakersections,sothattheyreceivespecialattentionduringreliefandrehabilitationinthecontextofdisasters.

• The Act should incorporate the duties,responsibilitiesandroleofthecommunity.

• ThereshouldbeaspecificprovisionintheActfortheroleandresponsibilitiesofCivilDefence,FireServiceandHomeGuards.

• The roles, powers and functions of importantfunctionariessuchas theReliefCommissioner,CEO of SDMA and the District MagistrateshouldbeenumeratedintheAct.

• TheActshouldprovide foragrievanceredressmechanisminthecontextofrelief,rehabilitationandreconstruction.

• The Act should provide for a Central ReliefCommissionerintheMHA.

• The Act should articulate the linkage betweendisasteranddevelopmentinthePreamble.

• Each Ministry/Department should issueguidelines and ensure that compliance of theguidelines aimed at disaster prevention isincorporatedinnewprojectsandschemes.

• Communitybaseddisasterpreparednessshouldbeincludedwiththeprovisionsrelatingtolocalauthorities.

• The role of local authorities needs to beelaboratedfurther.

• The responsibilities of the MunicipalCorporationshouldbeincludedintheActitself.

• ThePreambleshouldindicatetheinvolvementofcivilsocietyandentitlementofaffectedpersons.

• The role of Panchayati Raj Institutions in thecontext of the 73rd Amendment needs to befocusedupon.

• The Act should include a provision for theliability of the private sector as it may induceman-madedisastersthroughitsactsofomissionandcommission.

• The punishment is the same for differentoffencesacrossSectionsoftheAct.Forexample,an offence under Section 51 should attract apunishmentofat leastfiveyears imprisonmentinsteadofthetwoyearsatpresent.

111


7.2.6.1 In the same discussion paper17 referredto inPara7.2.2, theLawCommissionhasmadetwointerestingsuggestions.Thesuggestionsaretomakeprovisions in theDMAct,2005, toensurecompliance of safety regulations. The idea is tohaveapenalprovisionfornegligencebyofficialsaswellasnon-compliancebyoccupiersofbuildings.TheLawCommissionobserves:

“20.1 The accountability is a key factor in the enforcement of laws for prevention and control of man-made disasters. The principle of accountability applies both to officials as well as those in charge of management or entrusted with the duties connected with prevention and safety. There is no reason why gross dereliction of duties on the part of the officials and casual and careless manner of performance of duties should not attract penal provisions. For instance, if an unauthorised construction goes on with the full knowledge of officials or such a construction would not have escaped the notice of the officials, would it not be proper to penalise them under criminal law? So also, if the building plans are approved or NOC is issued without going through mandatory inspection and without verifying material particulars should not the official be visited with punishment for a specified offence? ………….. Palpable negligence in the performance or non-performance of official duties should not be overlooked by criminal law. Quite often, it is difficult to distinguish between such acts of gross dereliction or utter indifference and corrupt motives. There may not be enough proof to proceed against the official concerned under the Prevention of Corruption Act. But, there must be appropriate penal provision to punish such persons.

17Ibid,Para20,pp.14-17.

20.2 In this context it deserves notice that in the D.M. Act, 2005, there is a provision in Section55 under the caption “Offencesby Departments of the Government”. …………………. Apart from Section 55, there is another important provision i.e. Section56whichbears the heading“failureof officer in duty or his connivance atthe contravention of the provisions ofthisAct”. Under Section 56, refusal of any officer to perform the duty imposed by the Act or his withdrawal from the duties of his office is an offence punishable with imprisonment extending to one year or with fine. In order to absolve himself from the criminal liability, the officer has to prove that he has obtained the express permission of his official superior or has other lawful excuse. These two sections, viz., Section 55 and Section 56, are borrowed from the Environment Protection Act, 1986. There is no provision in other Acts, viz., Factories Act, Electricity Act, Cinematograph Act, Fire Service/Fire Prevention Acts and Municipal laws making the officials liable for criminal action. It needs to be considered whether the officers shall be visited with criminal liability for gross negligence or inaction in performing the duties connected with the observance and enforcement of basic safety standards and regulations and secondly, for connivance of the officer in the commission of the offence by the owner or occupier. Of course, the defence of exercise of reasonable diligence and acting in good faith will be open to the officer. ……………………. The officials’ callousness or apathy may allow the danger to remain unchecked and eventually, at some point of time, may trigger a major disaster. Still, it is not too easy to fix responsibility on the officials who have neglected their duties by taking recourse to general provisions in IPC. Prima facie, it appears desirable to introduce

112


a separate provision in the Central law providing for punishment of officials guilty of gross neglect of duty, etc. in the matter of enforcement of relevant provisions of law concerning safety and prevention relevant to manmade disasters. Such a penal provision can be introduced in the DM Act, on the analogy of the two existing provisions in Sections 55 and 56. ……..

20.3 Another provision for punishments which may be contemplated is the one modeled on Section 34 A of Massachusetts Fire Safety Law. That provision was added to Chapter 148 of the Act Relevant to Fire Safety in the Commonwealth. Section 34 A introduced in 2004 reads thus:

‘Section 34A (a) Any owner, occupant, lessee or other person having control or supervision of any assembly use group building, as defined by the state building code, and who causes or permits a dangerous condition to exist on the premises at any time shall be punished by a fine of not more than $5,000 or by imprisonment in the house of correction for not more than 2½ years, or both. ………………..

…….(b) Whoever is convicted of a second or subsequent violation of paragraph (a) shall be punished by a fine of not more than $25,000 or by imprisonment in the state prison for not more than 5 years or in a house of correction for not more than 2½ years, or both such fine and imprisonment.”’…………..

20.5 We may also refer to Section 34 B which prescribes punishment for violation of State Building or State Fire Code.

“Section 34B. Any person who wantonly or recklessly violates the state building code or state fire code and thereby causes serious

bodily injury or death to any person shall be punished by a fine of not more than $ 25,000 or by imprisonment in the state prison for not more than 5 years or in a house of correction for not more than 2½ years, or both.”

20.6 A provision substantially similar to Section 34 of the Massachusetts Act together with clauses (i), (ii) and (iii) of the definition of ‘dangerous condition’ can be introduced providing for imprisonment extending upto 1 or 2 years and fine extending up to Rs. 1 lakh together with a provision for additional fine for continuing offence. The incorporation of such a provision in D.M. Act with a non-obstante clause will ensure an element of uniformity as well as deterrence.”

7.2.7 The NDMA, at the consultation heldon July 24, 2012, submitted detailed commentson various issues included in the questionnairepreparedbytheTaskForce.TheNDMAfurnishedothercommentsaswell.Inaddition,itsubmitteda listofspecificamendmentsthatarerequiredtobe incorporated in the Act. This list includes alargenumberofamendments suchasprescribingtheminimumnumberofmeetingsoftheNDMA,empowering theNDMAtohavemore thanoneAdvisory Committee, removing the functionaloverlaps between the NDMA and the NEC,amongothers.However,inaletterdatedNovember6, 2012, from the Secretary, NDMA, it wassuggestedthatastheActhasbeeninexistenceonlyforthe lastsevenyears, itwouldnotbeadvisabletohavetoomanyamendments;onlyafewwhichare absolutely necessary should be considered.Theseamendmentsshouldbesuchthattheyhelpdefine more precisely the responsibilities relatingto disaster response. For instance, provisions forDDMAs as well as local authorities, particularlyin mega cities, could be reviewed as also theconstitutionofDisasterResponseandMitigationFundsatthelocallevel.TheTaskForceconsidered

113


allthesuggestionsoftheNDMAforamendmentstotheActandacceptedmostofthem.

7.2.8 The Director General, NDRF and CivilDefence, vide his letter of October 8, 2012,suggestedseveralamendmentstoSections3,8,20,42, 51, 60, 67 and74. Theamendmentsbroadlybelongtothefollowingcategories:

• The DG, NDRF, should be included as oneamongthenineMembersoftheNDMAsoasto enablehim/her to sharegroundexperiencesthat would help in laying down policies, plansandguidelinesfordisastermanagement.

• TheDG,NDRF,shouldbemadeaMemberoftheNECunderSection8oftheAct.

• TheDG,Police,oftheStateandtheheadoftheSDRFshouldbemademembersoftheSEC.

• The DG, NDRF, should be a Member of theGoverningBodyoftheNIDM.

• Section 51(a), 51(b), 60 (a), 67 and 74 givecertain powers to the Central Government,State Governments, the NDMA and DDMAandinsomecasestheNECorSECwithregardtooffencesandpenalties.ThesuggestionoftheDG,NDRF,istoincludetheNDRFinalltheseSections.

7.2.8.1 TheTaskForceconsideredthesuggestionsof the DG, NDRF. In view of the restructuringof the NDMA suggested earlier, it would notbe feasible to include theDG,NDRF, as oneofthe nine members of the NDMA. There is alsoa recommendation to abolish the NEC. ThesuggestionforSDMA’srestructuringaddressestheissueofinclusionoftheDGofPoliceasaMemberof theStateAuthority as inGujarat.There isnostatutoryprovisionintheActregardingtheSDRF.However,thesuggestionoftheTaskForcethattheSCMCmayincludeasmemberstheDG,Police,thesenior-mostofficerofthearmedforcesandthat

oftheNDRF,stationedattheStateheadquarters,ifany,takescareofthissuggestion.

As regards the inclusion of the DG, NDRF,in the Governing Body of the NIDM, it is forthe Central Government to take a view whileamending the relevant rules. The Act does notprovide for the composition of the GoverningBodyof theNIDM.Theother suggestions relateto including the NDRF in Sections 51, 60, 67and74.Forexample,Section51(a)providesthat“Whoever,withoutreasonablecause–(a)obstructsanyofficeroremployeeoftheCentralGovernmentor theStateGovernment,or apersonauthorisedby the National Authority or State Authority orDistrict Authority in discharge of his functionsunderthisAct”shallonconvictionbepunishablewith imprisonment or fine or both as prescribedinthesamesection.ThesuggestiontoincludetheNDRF is redundant because it is deployed withthe instruction of the Central Government, theStateGovernmentortheNationalAuthority.Theprovision will automatically apply to the NDRFpersonnel.SimilaristhecasewithrespecttootherSections.

Section ii

7.3 Recommendations of the Task Force Having carefully considered the suggestions ofstakeholders during consultations, and based ontheanalysisoftheprovisionsoftheAct,theTaskForcemakesthefollowingrecommendations:

7.3.1 In Section 4 (1) the expression “TheNational Authority shall meet as and whennecessary” may be replaced by “The NationalAuthority shall meet twice a year or more often,asnecessary”.TheideaisthattheNDMAshouldmeet regularly or at least twice a year and notoccasionallyasatpresent.

114


7.3.2 Section 5 provides for the appointmentof officers and other employees of the NDMA.It stipulates that the Central Government shallprovidetheNDMAwithsuchofficers,consultantsand employees as it considers necessary. This isa very restrictive provision. The NDMA has nopower to recruit and appoint officers and otheremployees.Otherautonomousorganisationshavemoreflexibility.TheNDMAshouldhavethepowertorecruitofficersandemployeesoncethepostsandtheservicerulesproposedbyitareapprovedbytheCentralGovernment.ThiswillenabletheNDMAtoidentifysuitablepersonneltoperformspecialisedtasks.ItwillenabletheNDMAtotakepersonnelon deputation from Government departments orrecruitdirectly.Inviewofthis,Section5maybeamendedasfollows.

• The National Authority may, with the approval of the Central Government, specify the numbers, nature and categories of officers and employees.

• The salaries and allowances payable to, and other terms and conditions of services, of officers and other employees shall be such as may be specified with the approval of the Central Government.

• The National Authority may also appoint consultants on the terms and conditions as may be stipulated.

7.3.3 Section 6 (2) (i) may be amended asfollows (the underlined portion below indicatesthe amendment recommended in the existingprovisionoftheActbytheTaskForce):

(i) take such other measures including providing technical assistance to State Governments for the prevention of disaster, or the mitigation or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary;

7.3.4 In section 10 (2)(f ) the expression

“NationalPolicy”maybeaddedsothatitwillreadasfollows.

(f ) monitor the implementation of the National Policy, the National Plan and the Plans prepared by the Ministries or Departments of the Government of India;

7.3.5 Section14(4)providesthattheChairpersonof the State Executive Committee shall be theChief Executive Officer of the State Authority.In order to make the SDMA functionally moreeffective,thefollowingprovisionsmaybemade:

There shall be a full-time Chief Executive Officer of the State Authority who shall be of the rank of Principal Secretary to the State Government.

7.3.6 Section 15 (1) may, as in case of theNationalAuthority,beamendedasfollows:

The State Authority shall meet twice a year or more often as necessary.

7.3.7 Section 16 provides for the appointmentof officers and other employees of the StateAuthorities.AsincaseoftheNationalAuthority,the State Authority should have the autonomyand flexibility to recruit and appoint appropriatepersonnel to perform various tasks. The Sectionmaybeamendedasfollows:

• The State Authority may, with the approval of the State Government, specify the numbers, nature and categories of officers and employees.

• The salaries and allowances payable to, and other terms and conditions of services, of officers and other employees shall be such as may be specified with the approval of the State Government.

• The State Authority may also appoint consultants on the terms and conditions as may be stipulated.

115


7.3.8 Section 27 provides that the DistrictAuthorityshallmeetasandwhennecessary.Itmaybeamendedtotheeffectthat“the District Authority shall meet once in a quarter and more often as and when necessary”.

7.3.9 Section 29 provides for the appointmentof officers and other employees of the DistrictAuthority.Theprovisionmaybemodifiedtogivesomepower to theDistrictAuthority to identifyappropriate personnel as in case of the StateAuthority.

7.3.10 Sections36(f )(ii)to(iv)areactivitiesrelatingtoresponse.Hence,thesethreeitemsmaybeplacedinSection36(g)asitems(vi)to(viii).

7.3.11 As already mentioned in para 5.5.3.3.2ofthisreport,Section41(2)maybeamendedasfollows (the underlined portion below indicatesthe amendment recommended in the existingprovisionoftheActbytheTaskForce):

“The local authority may take measures for ensuring compliance with the laws and rules of building safety and fire safety, and other measures as may be necessary for disaster management”.

7.3.12 Section42(2)providesthat“TheNationalInstituteofDisasterManagementshallconsistofsuch number of members as may be prescribedby the Central Government.” The expression‘Institute’ appearsanomalousbecause theSectionprovides for members of the institute as well asotheraspectsoftheNationalInstituteofDisasterManagement.The word ‘institute’ is perceived asthe entireorganisational structureof theNIDM.Hence, insteadof theword instituteone canusethe expression ‘general body’ or even ‘governingbody’. In case of the latter, the governing bodyprovidedinSection42(4)maybecalledExecutiveCommittee.

7.3.13 Incase it isdecidednot tohave separateFunds for response andmitigation at thedistrictlevel, Section 48 (1) (b), 48(1)(d) and 48(2)(iii) will have to be deleted. Otherwise, Section48(1)maybeamendedtotheeffectthattheStateGovernment ‘may’ – inplaceof ‘shall’ – establishDistrictDisasterResponseFundandtheDistrictDisasterMitigationFund.

7.3.14 As discussed in para 7.2.6.1, a provisionsimilar to Section 34 of the Massachusetts Actmay,assuggestedintheConsultationPaperoftheLawCommissionofIndia,beintroducedsoastoprovideapenalprovisionfornegligenceandnon-complianceofsafetyregulations.

7.3.15 In Section 54, the expression ‘alarm orwarning’maybereplacedby‘prediction’.

7.3.16 Section 69 of the Act empowers theNationalExecutiveCommitteeandStateExecutiveCommittee, as the case may be, to delegate itspowersandfunctionstoanymemberoranyofficer.The NDMA, the SDMA and the DDMA mayalsobegivensuchpowers.

7.3.17 Section76empowerstheNationalInstituteofDisasterManagementtomakeregulationswiththepriorapprovaloftheCentralGovernment.AprovisionmaybemadegivingsimilarpowertotheNDMAtomakeregulationssothat itcanframeregulations relating to its conduct of business,service conditions of personnel, among otherthings.

7.3.18 As suggested during consultations andas discussed earlier, it would be worthwhile toincorporate provisions relating to the followingaspectsintheAct:

• The Act should specifically mention women,children,thedisabled,andweakersections.

116


• The Act should incorporate the duties,responsibilities and role of citizens and thecommunity.Theirrightsmayalsobementioned.

• Community based disaster preparedness maybeincludedwiththeprovisionsrelatingtolocalauthorities.

• Roles and responsibilities of Civil Defence,Home Guards and Fire Service may beincluded.Section27oftheGujaratActhassuchprovisions.

• The Act should include the role, responsibilityandliabilityoftheprivatesector.Sections28to31oftheGujaratActareworthemulating.

• There should be a provision for a grievancesredress mechanism in the context of relief,rehabilitationandreconstruction.

• Inmanycountries,volunteersplayasignificantrole in response and other activities. The Actshould have such a provision to encourageparticipation of volunteers in disastermanagement.

• TheActshouldhaveaprovisionforpromotingadequate risk-transfer, risk-sharing and cost-sharingmechanisms,similartothatinSection4oftheGujaratAct.

7.3.19 Aneffective implementation of the Act’sprovisions would be possible only when there isanoptimalprofessionalset-upinplacetoperformthe tasks. Indeed, there is a need to analysethe administrative structure and professionalcompetence of the DM Division of the MHA,the NDMA, the SDMA and DDMAs. A cadreof disaster management professionals may be setup, and training and education facilities in thisareaneedtobeexpanded.Anindependentexerciseshouldbeundertakenforthispurpose.

Box 7.1: sUggesTIons of sTAkeholDeRs

foR new PRovIsIons In The AcT

• There should be a specific mention about protecting the interests of women, children, the disabled, and weaker sections.

• The Act should incorporate the duties and responsibilities of the community.

• community based disaster preparedness may be included with the provisions related to local authorities.

• The roles and responsibilities of civil Defence, home guards and fire service may be included.

• The Act should include the role, responsibility and liability of the private sector.

• The Act should provide for a grievance redress mechanism.

117

A Summary of the Recommendations of the Task Force

8This chapter contains a summary of therecommendations of the Task Force. For moredetailsandtherationaleoftherecommendations,therelevantparagraphsofthereport–indicatedinsquarebrackets–maybereferredto.

8.1 Role and Functions of the National Disaster Management Authority (NDMA) [Para 4.6.2.6.1 to 4.6.2.6.4]8.1.1 The role and functions of the NDMAshould cover policies, plans, guidelines andregulations relating to prevention, mitigationand preparedness. It should coordinate with theagencies concerned and ensure that all activitiesrelatingtoprevention,mitigationandpreparednessenvisaged by the Act are performed. This willinclude coordinating the implementation ofpolicies and guidelines and preparation of plans.Coordination of disaster response functions withStatesandUTswillbedonebytheMHA.

8.1.2 Some functions of the NEC mentionedinSection10oftheAct,whichrequiresustainedattention, may be assigned to the NDMA.Examplesare:

• PreparationoftheNationalPlan[Section10(2)(b)]

• To monitor, coordinate and give directionsregarding the mitigation and preparednessmeasurestobetakenbydifferentMinistriesorDepartmentsandAgenciesoftheGovernment[Section10(2)(h)]

• To plan and coordinate specialised trainingprogrammes for disaster management fordifferent levels of officers, employees andvoluntaryrescueworkers[10(2)(j)].

8.1.3TheNDMAwillhave the responsibility ofpreparingandapprovingtheNationalPlan.Onceit is restructured,as suggestedby theTaskForce,theOfficeoftheNDMAwillpreparetheNationalPlan and place it before the National Authorityforapproval.Theprocesswillbesomewhatsimilarto the process of finalisation of Five-Year Plansby the Planning Commission, though the Plansare alsoplacedbefore theNationalDevelopmentCouncil. In caseofNDMA, therewouldbenosuch requirement of placing the National Planbefore National Development Council or anyotherequivalentBody. Section6(2)(b)oftheActwillneedtobeamendedaccordingly.

8.2 Structure of the NDMA [Para 4.6.2.6.5 to 4.6.2.6.8]8.2.1 The NDMA should have not more thanfour full-time Members including the Vice-Chairperson, the others – Ministers for Home,Defence, Finance, Agriculture and UrbanDevelopment–beingex-officio.ThoughtheVice-ChairpersonisthechiefexecutiveoftheNDMA,one of the full-time Members can be designatedas Member Secretary so that there is a formalinterface/linkagebetweenthehigh-levelCouncil/Authority and the administrative wing of theNDMA. All full-time Members will, of course,be involved in broader policy decisions of the

118


Councilandalsointheexecutivefunctionsoftheorganisationrelatingtodisastermanagement.

8.2.2Thefull-timeMembers,includingtheVice-Chairperson, will be persons with experience,domainknowledgeandcredibleaccomplishmentsin disaster management. The tenure and agelimit of the Members need to be specified as inother Acts such as those relating to the CentralElectricity Regulatory Commission, the ElectionCommission, the Competition Commission, andtheNationalHumanRightsCommission,etc.

8.2.3TheSelectionofMembersofNDMAshouldbe through anopen and transparentprocess.Forthis purpose a Search and Selection Committeemaybeconstituted.

8.2.4 ThefollowingprovisionsmaybeincludedinChapterIIoftheAct:

• The National Authority shall consist of the following:-

– the Prime Minister of India, who shall be the Chairperson of the National Authority, ex-officio

– the Ministers in charge of the Ministries of the Government of India dealing with Home, Defence, Finance, Agriculture and Urban Development as Members, ex-officio

– not more than four full-time Members, one of whom may be designated by the Chairperson to be the Vice-Chairperson of the National Authority

• The full-time Members of the National Authority shall be persons of ability, integrity and standing, with knowledge of and credible accomplishments in disaster management, science and public policy.

• Full-time Members of the National Authority shall be appointed by the Government of India after obtaining the recommendations of a Committee comprising the Prime Minister (as Chairperson), Speaker of the House of the People, Minister-

in-charge of the Ministry of Home Affairs of the Government of India, Leader of the Opposition in the House of the People, Leader of the Opposition in the Council of States, and Deputy Chairman of the Council of States.

• A full-time Member shall hold office for a term of five years from the date of entering office; provided that s/he shall not be eligible for re-appointment in the same capacity: Provided further that no full-time Member shall hold office as such after attaining the age of sixty-five years.

• The salary, allowances and other terms and conditions of service of the full-time Members shall be such as may be prescribed by the Government of India.

8.3 The High Level Committee (HLC) [Para 4.6.2.6.9]8.3.1 TheHLCmaybeincorporatedintheActin its present form.Similarly, the IMGmay alsofindplaceintheAct.

8.4 The National Executive Committee (NEC) [Para 4.6.3 to 4.6.3.3.3]8.4.1 TheNECmaybediscontinued.TheNCMCmaybeincludedintheDisasterManagementAct,2005.ItmaysubstitutetheNECinSections8,9,10andotherrelevantprovisions.ThecompositionoftheNCMCmaybesimilartothatprovidedinSection8(2)withamodificationtotheeffectthattheCabinetSecretaryshallbeChairpersonandtheHomeSecretaryaMember.

8.4.2 Section 10(2) may be modified to theeffectthatthefunctionsoftheNCMCwillbeto:

• Act as the coordinating and monitoring body for disaster management.

• Monitor the implementation of the National

119

A summary of the Recommendations of the Task force

Plan and the Plans prepared by the Ministries or Departments of the Government of India.

• Monitor the implementation of the guidelines laid down by the National Authority for the integration of disaster prevention and mitigation measures by the Ministries or Departments in their development plans and projects.

• Evaluate preparedness at all governmental levels for the purpose of responding to any threatening disaster situation or disaster and give directions, where necessary, for enhancing such preparedness.

• Coordinate response in the event of any threatening disaster situation or disaster.

• Perform such other functions as the National Authority may require it to perform.

The above items correspond to those mentionedin Section 10(2)(e), (f ), (g), (i) and (k). Otherfunctions enumerated in Section 10(2) may beassignedtotheNDMA.

8.4.3TheDMDivisionoftheMinistryofHomeAffairs may provide secretariat services to theNCMCforthepurposeoftheaboveactivitiesinadditiontoitsownfunctions.

8.5 The National Institute of Disaster Management (NIDM) [Para 4.6.4 to 4.6.4.4]8.5.1TheTaskForceexaminedtheissuewhethertheNIDMshouldbecome the ‘capacitybuildingarm’of theNDMA.TheGoverningBodyof theNIDM already has representation from NDMAand MHA. The Act already provides that ithas to function within the broad policies andguidelines as laid down by the NDMA. Hence,it should functionautonomously in respect to itsactivitiesandhumanresourcespracticeandnotasa subordinateorganisationof theNDMA/MHAforthefunctionsentrustedtoitbytheAct.

8.5.2 Section 43 of the Act stipulates that “TheCentral Government shall provide the NationalInstitute of Disaster Management with suchofficers, consultants and other employees as itconsidersnecessary, forcarryingout its function”.ThisprovisionmayhavetobeamendedsothattheNIDMdoesnothave anyprocedural constraintsinhaving the requiredhuman resources.For thispurposeSection43oftheActmaybeamendedasfollows:

• The National Institute of Disaster Management may, with the approval of the Central Government, specify the numbers, nature and categories of officers and employees.

• The salaries and allowances payable to, and other terms and conditions of service of the officers and other employees shall be such as may be specified with the approval of the Central Government.

• The National Institute of Disaster Management may also appoint consultants on the terms and conditions as may be specified.

8.5.3 As regards state level disaster managementinstitutes or creation of regional centres of theNIDM, there is no need to make any provisionin the Act. States may decide whether to have adisaster management cell at the AdministrativeTrainingInstitutes,aseparateinstituteofdisastermanagement (as in Gujarat) or an arrangementwith the NIDM for capacity building of theirpersonnel. The Task Force, however, would liketoemphasisethecriticalroleofcapacitybuildingforeffectivedisastermanagementandrecommendto the State Governments to accord priority tocreating a state level organisational arrangementfor this purpose. Further, the NIDM being thenational focal point for capacity building in thecountry for disaster management, it is importantthatithavesomeorganiclinkageswithstatelevelDMinstitutions.

120


8.6 The National Disaster Response Force (NDRF) [[Para 4.6.5 to 4.6.5.3.6]8.6.1 The NDRF has done quite well under theexistinglegalframework.ThereisnoneedtoamendtheexistingprovisionsrelatingtotheNDRFintheDisasterManagementAct,2005.

8.6.2 The Task Force would like to suggest twoadministrativemeasuresinrespectoftheNDRF:

• AtpresentNDRFpersonnelcomefromdifferentForcesandgobackafteraspecifiedperiod.Theirskill, experience and expertise developed whileworkingwiththeNDRF,mightnotbeavailablefor disaster response after they leave. Some ofthemmaybeallowedtocontinueortheNDRFmayrecruitsomeofitspersonnelsothatthereiscontinuity and institutionalmemory in respectofsometypesofexpertise.

• ThepresentarrangementofDG,NDRF,havingthe duties of Civil Defence, Home Guardsand Fire Services can help integrate disastermanagement activities of these organisations.However, the DG, NDRF, and Civil Defenceshould not be given additional duties of anycentral armed police force. The DG shouldalso have an administrative reporting line tothe NDMA and ideally should be under theadministrative control of the NDMA as anofficerondeputation.

8.7 State Disaster Management Authority (SDMA) [Para 5.5.1.1 to 5.5.1.5]8.7.1TheroleandfunctionsoftheSDMAshouldcover policies, plans, guidelines and regulationsrelating to prevention, mitigation, preparednessand long-term recovery. It should coordinatewith the agencies concerned and ensure that all

activities relating to prevention, mitigation andpreparednessenvisagedbytheActareperformed.Thiswillincludecoordinatingtheimplementationofpoliciesandguidelinesandpreparationofplans.

8.7.2AsdiscussedlaterinthecontextoftheSEC,somefunctionsoftheSECmentionedinSection22 and 23 of the Act, which require sustainedattention,maybeassignedtotheSDMA.Examplesare:

• PreparationoftheStatePlan[Section23(2)]

• ToexaminethevulnerabilityofdifferentpartsoftheState[Section22(2)(b)]

• To promote general education, awareness,communitytraining,etc.,[22(2)(i)].

8.7.3 The SDMA will be responsible forpreparing and approving the State Plan. Once itisrestructured,assuggestedbytheTaskForce,theSecretariat/OfficeoftheSDMAwillpreparetheStatePlanandplaceitbeforetheStateAuthorityforapproval.TheprocesswillbesimilartothatofthepreparationandapprovaloftheNationalPlanbytheNDMA.

8.7.4TheMembersmaybeex-officioorpart-timeasinseveralStatesatpresent.However,theStateGovernment may have the discretion to appointnotmorethantwofull-timeMembers.

8.7.5Ministers of the relevant Departments, theChiefSecretary,theDirectorGeneralofPoliceandoneortwoeminentexpertswhocouldbepart-timeorfull-time,maybeincludedasMembers.

8.7.6 The SDMA should have a separatesecretariatwithprofessionalstaffandaCEOwhocouldbeoftherankofPrincipalSecretarytotheState Government. The Relief Commissionercould function as Additional CEO. In thealternative,particularlyinsmallerStates,theRelief

121


CommissionercouldfunctionasCEO,SDMA.

8.7.7 Full-time Members, if any, includingthe Vice-Chairperson, should be persons withexperience, domain knowledge and credibleaccomplishmentsindisastermanagement.

8.7.8 The tenure and age limit of MembersneedtobespecifiedasinotherActssuchasthoserelatingtoregulatoryandothercommissions.

8.7.9 Theselectionoffull-timeMembersoftheSDMAshouldbethroughanopenandtransparentprocess. For this purpose a Search and SelectionCommitteemaybeconstituted.

8.7.10 In Section 14, a clause may be added toprovidefortheChairpersonoftheStateAuthoritywhenaStateisunderPresident’srule.

8.7.11 ThefollowingprovisionsmaybeincludedinChapterIIIoftheAct:

• The State Authority shall consist of the following:-

– the Chief Minister of the State, who shall be the Chairperson of the State Authority, ex-officio

– two Ministers nominated by the Chief Minister by virtue of their office from amongst the Council of Ministers of the State as Members, ex-officio

– the Chief Secretary of the State, ex-officio

– the Director General of Police of the State, ex-officio

– the Chief Executive Officer of the Authority, ex-officio

– not more than two full-time Members

– two other officers of the State Government or two more Ministers or two eminent experts in disaster management

• The Chairperson of the State Authority may designate

one of the Members to be the Vice-Chairperson of the State Authority.

• Full-time Members, if any, of the State Authority shall be persons of ability, integrity and standing, with knowledge of and credible accomplishments in disaster management, science or public policy.

• Full-time Members of the State Authority shall be appointed by the Government of the State after obtaining the recommendations of a Committee comprising the Chief Minister (as Chairperson), Speaker of the Legislative Assembly of the State, Minister-in-charge of the Department dealing with disaster management, and the Leader of the Opposition in the Legislative Assembly.

• A full-time Member shall hold office for a term of five years from the date of entering office; provided that the Member shall not be eligible for re-appointment in the same capacity: Provided further that no full-time Member shall hold office as such after attaining the age of sixty-five years.

– The salary, allowances and other terms and conditions of service of full-time Members shall be such as may be prescribed by the Government of the State.

8.8 State Executive Committee (SEC) [Para 5.5.1.6 to 5.5.1.8]8.8.1 The SEC may be discontinued. TheSCMCmaybeincludedintheDMAct,2005.ItmaysubstitutetheSECinSections20,21,22andotherrelevantprovisions.

8.8.2The composition of the SCMC may be asprovidedinSection20(2)withamodificationtotheeffectthattheDirectorGeneralofPolice,senior-mostofficerofthearmedforcesandoftheNDRF,ifithasaunitstationedattheStateheadquarters,andanyotherofficerastheStateGovernmentmaythinkfit,maybeincludedintheSCMC.

122


8.8.3 Section 22(2) may be modified to theeffectthatthefunctionsoftheSCMCwillbeto:

• Coordinate and monitor the implementation of the National Policy, the National Plan and the State Plan.

• Monitor the implementation of disaster management plans prepared by the Departments of the Government of the State and District Authorities.

• Monitor the implementation of the guidelines laid down by the State Authority for integrating disaster prevention and mitigation measures by the departments in their development plans and projects.

• Evaluate preparedness at all governmental and non-governmental levels to respond to any threatening disaster situation or disaster and give directions, where necessary, for enhancing such preparedness.

• Coordinate response in the event of any threatening disaster situation or disaster.

• Give directions to any Department of the Government of the State or any other authority or body in the State regarding the actions to be taken in response to any threatening disaster situation or disaster.

• Advise the State Government in all financial matters related to disaster management.

• Lay down, review and update state level response plans and guidelines and ensure that district level plans are prepared, reviewed and updated.

• Ensure that communication systems are in order and that the disaster management drills are carried out periodically.

• Perform such other functions as may be assigned to it by the State Authority or as it may consider necessary.

TheaboveitemscorrespondtothosementionedinSection22(2) (a), (d), (e), (f ), (g), (h), (l), (o), (p)

and (q). Other functions enumerated in Section22(2)maybeassignedtotheSDMA.

8.8.4 TheDepartmentofDisasterManagementortheDMDivisionlocatedinanotherdepartmentor the office of the Relief Commissioner mayprovide secretariat support to theSCMCfor thepurposeoftheaboveactivities.

8.9 District Disaster Management Authority (SDMA) [Para 5.5.2 to 5.5.2.5.5]8.9.1 The provisions of the Act relating to theDDMAmayberetainedwithsomeamendments.

8.9.2 ThecompositionoftheDDMAprovidedin Section 25(2) of the Act may be modified toincludetwoeminentpersonswithexperienceandknowledge of disaster management. If necessary,the number of Members may be increased fromseventonine.

8.9.3 TheDDMAshouldhaveaseparateofficeor secretariat with professional staff, as may beprescribed by the State Government, in order toeffectivelyperformthenumeroustasksenumeratedin Section 30 of the Act. This office should beheaded by the Additional Collector/AdditionalDeputy Commissioner who is the CEO of theDDMAunderSection25(4)oftheAct.

8.9.4 Section 29 may, as in the case of similarprovisions for the NDMA and SDMA, beamended to vest some powers in the DDMA torecruit personnel and engage consultants withrespecttosanctionedposts.

8.9.5 Section 34 of the Act enumerates thepowersandfunctionsoftheDDMAintheeventof any disaster situation or disaster. A dozenitems included are of the nature of regulatory/administrativeactivitiessuchasgivingdirectionforthereleaseofresources,controlofvehiculartraffic,

123


removal of debris, search and rescue operations,anddisposalofunclaimeddeadbodies.Fortimelyand prompt action, these powers and functionsshouldbevestedintheDistrictCollector/DistrictMagistrate. In the title of Section 34, ‘DistrictAuthority’maybereplacedby‘CollectororDistrictMagistrateorDeputyCommissioner’.

8.10 Local Authorities [Para 5.5.3 to 5.5.3.3.3]8.10.1 As regards the suggestion for bringingAutonomous District Councils under theprovisionsoftheLocalAuthority,thedefinitionofLocalAuthorityinSection2(h)alreadytakescareof it. However, for further clarity, AutonomousDistrictCouncilsmaybeadded to thedefinitioninthesamesub-section2(h)oftheAct.

8.10.2 Section 41(1) provides for the functionsof Local Authorities for the purpose of disastermanagement. It enumerates activities such astraining officers and employees; maintaining andkeeping resources ready foruse in the eventof adisaster; ensuring that all construction projectsconformtoprescribedstandards;andcarryingoutrelief, rehabilitation and reconstruction activities.Formoreclarity,thefollowingtwoaspectsmaybeincorporated:

• Ensuringcompliancewiththe laws,codes,andrulesrelatingtobuildingsafetyandfiresafety.

• A reference to the preparation of a disastermanagementplanasenvisagedinSection32oftheAct.

8.10.3 In Chapter VI of the Act some newsectionssimilartoSections25,26,27,29and30maybeaddedsoastoenabletheStateGovernmentto constitute a Disaster Management Authorityfor large cities, e.g., those with MunicipalCorporations.SuchanAuthorityshouldhavethefollowingfeatures:

• The Mayor of the Municipal Corporationmay be the Chairperson, with the MunicipalCommissioner, Police Commissioner, DistrictCollector and two experts/specialists asMembers.

• The Authority shall act as the planning,coordinatingandimplementingbodyfordisastermanagementandtakeallsuchmeasuresforthepurpose of disaster management in the areaof the city under its jurisdiction in accordancewith the guidelines laiddown by theNationalAuthorityandStateAuthority.

• The functions of the Authority may beenumeratedintheproposedsectionasthoseoftheDDMAmentionedinSection30(2)oftheAct.

• It needs to be specifically mentioned that theAuthoritywouldfunctioninclosecoordinationwith the DDMA. Its disaster managementplan should be linked to the District DisasterManagement Plan and the State DisasterManagementPlan.

8.11 Preparation of Disaster Management Plans [Para 6.4 to 6.5.8]Sections35,36and37oftheActenumeratetheduties and responsibilities of various Ministries/DepartmentsoftheGovernmentofIndia.Similarly,Sections38,39and40provideforthedutiesandresponsibilities of the Departments of the StateGovernments.Therearealsoprovisionsrelatingtopreparation of disaster management plans at thenational,stateanddistrictlevels.ItisobservedbytheTaskForcethatthoughoversevenyearshaveelapsed since the Act was passed, not much hasbeen done by the Ministries, Departments anddistrictadministrationtoeffectivelyimplementtheprovisionsoftheAct.InviewofthistheTaskForcemakesthefollowingrecommendations:

124


8.11.1 TheDisasterManagementDivision(DMDivision)oftheMHAintheGovernmentofIndiamaybestrengthenedsothatitisbetterequippedtoundertaketheactivitiesassignedbytheAct.

8.11.2 The National Crisis ManagementCommittee (NCMC) headed by the CabinetSecretary – which should become a statutorycommittee as suggested earlier – may, with thesecretarial assistance of the DM Division of theMHA, periodically monitor the performance ofthevariousMinistriesoftheGovernmentofIndiawithrespecttotheprovisionsoftheAct.

8.11.3 The NDMA should be given theresponsibility of preparing the National DisasterManagement Plan and also of monitoring theactivitiesofvariousMinistriesregardingthetasksassignedbytheAct.

8.11.4 Atthestatelevel,theSDMAneedstobemaderesponsibleforpreparingtheStateDisasterManagementPlanandreviewingtheperformanceofvariousdepartmentsregardingthetasksassignedtothembytheAct.Thiswillbesupplementedbya regular monitoring of the activities of variousdepartmentsbythestatelevelCrisisManagementCommitteeheadedbytheChiefSecretary.

8.11.5 The DDMAs should be better equippedtobeabletopreparedistrictdisastermanagementplans andundertakeother activities ofmanagingdisasters.

8.11.6 It is necessary not only to ensure thatdifferenttypesandlevelsofdisastermanagementplans are consistent with each other but also toensure that plans at state and national level aremaderealisticandrelevantbytakingintoaccountvariousfeaturesandneedsofsmallergeographicalunits.

8.11.7 The off-site emergency plans of majorchemicalindustriesandnuclearinstallationsneed

tobelinkedwiththedisastermanagementplansofthedistrictandoflocalauthorities.

8.11.8 A few of the above recommendationswill require administrative actions; otherrecommendationswillnecessitateamendmentstothecorrespondingprovisionsoftheActinthelightofthediscussioninthischapterofthereport.

8.12 Financing Provisions of the Act [Para 6.6.3 to 6.7.4]8.12.1 At the national level, the NationalDisasterResponseFundandtheNationalDisasterMitigation Fund are required. The provisions ofSections46and47oftheActshouldberetained.However,thesourceofeachFundanditslinkagewiththerespectiveStateFundmaybespecifiedintheActorRules.

8.12.2Atthestatelevelitisdesirabletohavebothfunds–theStateDisasterResponseFundandtheStateDisasterMitigationFund.ThesourceofeachFundanditslinkagewiththerespectiveNationalFundmaybespecifiedintheActorRules.

8.12.3 Itisnecessarytoworkout–throughrulesor administrative measures – a mechanism orprocedure fordetermining the size and sourceoffundsfortheNDRFaswellasSDRF.Forexample,the Finance Commissions may be mandated todeterminetheseaspectseveryfiveyears.

8.12.4 For National and State MitigationFunds,guidelines for theutilisationof fundsandidentification of projects may be prepared bythe NDMA in consultation with the PlanningCommission.

8.12.5As regards district level funds, theStateGovernmentmaydecidewhethertohaveresponseandmitigationfundsortoputinplaceaseparatemechanismfortimelyaccesstofinancialresources

125


bydistrictauthorities.Section48maybeamendedasdiscussedintheprecedingparagraphs.

8.12.6In Section 46 the expression ‘NationalDisaster Response Fund’ may be changed to‘National Fund for Disaster Response’ (NFDR).Similarly, in Section 48, the expression ‘StateDisasterResponseFund’maybechangedto‘StateFundforDisasterResponse’(SFDR).

8.13 Other Provisions of the Act [Para 7.2.1 to 7.3.18] Having carefully considered the suggestions ofstakeholders during consultations, and based ontheanalysisoftheprovisionsoftheAct,theTaskForcemakesthefollowingrecommendations:

8.13.1 In Section 4 (1) the expression “TheNational Authority shall meet as and whennecessary” may be replaced by “The NationalAuthority shall meet twice a year or more often,asnecessary”.TheideaisthattheNDMAshouldmeet regularly or at least twice a year and notoccasionallyasatpresent.

8.13.2 Section 5 provides for the appointmentof officers and other employees of the NDMA.It stipulates that the Central Government shallprovidetheNDMAwithsuchofficers,consultantsand employees as it considers necessary. This isa very restrictive provision. The NDMA has nopower to recruit and appoint officers and otheremployees.Otherautonomousorganisationshavemoreflexibility.TheNDMAshouldhavethepowertorecruitofficersandemployeesoncethepostsandtheservicerulesproposedbyitareapprovedbytheCentralGovernment.ThiswillenabletheNDMAtoidentifysuitablepersonneltoperformspecialisedtasks.ItwillenabletheNDMAtotakepersonnelondeputationfromGovernmentDepartmentsorrecruitdirectly. InviewofthisSection5maybeamendedasfollows.

• The National Authority may, with the approval of the Central Government, specify the numbers, nature and categories of officers and employees.

• The salaries and allowances payable to, and other terms and conditions of services, of officers and other employees shall be such as may be specified with the approval of the Central Government.

• The National Authority may also appoint consultants on the terms and conditions as may be stipulated

8.13.3 Section 6 (2) (i) may be amended asfollows (the underlined portion below indicatesthe amendment recommended in the existingprovisionoftheActbytheTaskForce):

(i) take such other measures including providing technical assistance to State Governments for disaster prevention, mitigation or preparedness and capacity building for dealing with a threatening disaster situation or disaster as it may consider necessary

8.13.4 In Section 10 (2)(f ) the expression“NationalPolicy”maybeaddedsothatitwillreadasfollows.

(f ) monitor the implementation of National Policy, the National Plan and the Plans prepared by the Ministries or Departments of the Government of India;

8.13.5 Section14(4)providesthattheChairpersonof the State Executive Committee shall be theChief Executive Officer of the State Authority.In order to make the SDMA functionally moreeffective,thefollowingprovisionsmaybemade:

There shall be a full-time Chief Executive Officer of the State Authority who shall be of the rank of Principal Secretary to the State Government.

8.13.6 Section 15 (1) may, as in case of theNationalAuthority,beamendedasfollows:

The State Authority shall meet twice a year or more often as and when necessary.

126


13.7 Section 16 provides for the appointmentof officers and other employees of the StateAuthorities.AsincaseoftheNationalAuthority,the State Authority should have the autonomyand flexibility to recruit and appoint appropriatepersonnel to perform various tasks. The sectionmaybeamendedasfollows:

• The State Authority may, with the approval of the State Government, specify the numbers, nature and categories of officers and employees.

• The salaries and allowances payable to, and other terms and conditions of services, of officers and other employees shall be such as may be specified with the approval of the State Government.

• The State Authority may also appoint consultants on the terms and conditions as may be stipulated

8.13.8 Section 27 provides that the DistrictAuthorityshallmeetasandwhennecessary.Itmaybeamendedtotheeffectthat“the District Authority shall meet once in a quarter and more often as and when necessary”.

8.13.9 Section 29 provides for appointmentof officers and other employees of the DistrictAuthority.Theprovisionmaybemodifiedtogivesomepower to theDistrictAuthority to identifyappropriate personnel as in case of the StateAuthority.

8.13.10 Sections 36 (f ) (ii) to (iv) are activitiesrelatingtoresponse.Hence,thesethreeitemsmaybeplacedinSection36(g)asitems(vi)to(viii).

8.13.11 As already mentioned in para 5.5.3.3.2ofthisreport,Section41(2)maybeamendedasfollows (the underlined portion below indicatesthe amendment recommended in the existingprovisionoftheActbytheTaskForce):

“The local authority may take measures for ensuring compliance with the laws and rules of building safety

and fire safety, and other measures as may be necessary for disaster management”.

8.13.12Section42(2)providesthat“TheNationalInstituteofDisasterManagementshallconsistofsuch number of members as may be prescribedby the Central Government”. The expression‘Institute’ appearsanomalousbecause theSectionprovides for members of the institute as well asotheraspectsoftheNationalInstituteofDisasterManagement.The word ‘institute’ is perceived asthe entireorganisational structureof theNIDM.Hence, insteadof theword instituteone canusethe expression ‘general body’ or even ‘governingbody’. In case of the latter, the governing bodyprovidedinSection42(4)maybecalledExecutiveCommittee.

8.13.13Incase it isdecidednot tohaveseparateFunds for response andmitigation at thedistrictlevel, Section 48 (1) (b), 48(1)(d) and 48(2)(iii) will have to be deleted. Otherwise, Section48(1)maybeamendedtotheeffectthattheStateGovernment ‘may’ – inplaceof ‘shall’ – establishaDistrictDisasterResponseFundandaDistrictDisasterMitigationFund.

8.13.14 As discussed in para 7.2.6.1, a provisionsimilar to Section 34 of the Massachusetts Actmay,assuggestedintheConsultationPaperoftheLawCommission,beintroducedsoastoprovideapenalprovisionfornegligenceandnon-complianceofsafetyregulations.

8.13.15 In Section 54, the expression ‘alarm orwarning’maybereplacedby‘prediction’.

8.13.16 Section 69 of the Act empowers theNationalExecutiveCommitteeandStateExecutiveCommittee, as the case may be, to delegate itspowersandfunctionstoanymemberoranyofficer.The NDMA, the SDMA and the DDMA mayalsobegivensuchpowers.

127


8.13.17Section76empowerstheNationalInstituteofDisasterManagementtomakeregulationswiththepriorapprovaloftheCentralGovernment.AprovisionmaybemadegivingsimilarpowertotheNDMAtomakeregulationssothat itcanframeregulations relating to its conduct of business,serviceconditionsofpersonnelandsoon.

8.14 Additional Provisions Proposed Assuggestedduringconsultationsandasdiscussedearlier, it would be worthwhile to incorporateprovisionsrelatingtothefollowingaspectsintheAct.

8.14.1 The Act should specifically mentionwomen,children,thedisabled,andweakersections.

8.14.2 The Act should incorporate the duties,responsibilities and role of citizens and thecommunity.Theirrightsmayalsobementioned.

8.14.3 Community based disaster preparednessmay be included with the provisions relating tolocalauthorities.

8.14.4 The roles and responsibilities of CivilDefence,HomeGuardsandFireServicemaybeincluded.Section27oftheGujaratActhassuchprovisions.

8.14.5 The Act should include the role,

responsibility and liability of the private sector.Sections 28 to 31 of the Gujarat Act are worthemulating.

8.14.6 There should be a provision for agrievances redress mechanism in the context ofrelief,rehabilitationandreconstruction.

8.14.7 In many countries volunteers play asignificantroleinresponseandotheractivities.TheActshouldhavesuchaprovisiontoencouragetheparticipationofvolunteersindisastermanagement.

8.15 Risk Transfer and InsuranceThe Act should have a provision for promotingadequate risk-transfer, risk-sharing and cost-sharingmechanisms,similartothatinSection4oftheGujaratAct.

8.16 Human Resource AspectThe provisions of the Act would be effectivelyimplemented only when there is an optimalprofessional set-up inplace toperform the tasks.Indeed,thereisaneedtoanalysetheadministrativestructureandprofessionalcompetenceoftheDMDivisionoftheMHA,theNDMA,theSDMAandDDMAs.Anationalcadreofdisastermanagementprofessionals may be set up, and training andeducation facilities in this area expanded. Anindependentexerciseshouldbeundertakenforthispurpose.

128

Annexure-I

129

Annexure

130


131

Annexure

The questionnaire on the DM Act, 2005 is to seek views and opinions of the stakeholders who haveparticipated in and influenced the implementation of DM Act, 2005.The questionnaire covers all thechaptersoftheAct,andcouldbeaddressedinentiretysoastoprovideageneraloverviewaswellasspecificsuggestionsontheactualfunctioningoftheAct.However,ifaparticularinstitutionorindividualchoosetoaddress justonechapterormorechapterofthequestionnaireonaselectivebasis,thatwouldalsobeusefulforthecurrentexercise.ThereisalsoasetofgeneralquestionsattheendwhichwouldrecordtheoverallimpressionsontheeffectivefunctioningoftheAct.Therepliestothequestionnaireshouldbeshort,precise,andwhereverrequired,backedbyevidencefromtherecentexperiences.Stakeholders,whilegivingtheir viewsandopinions towards implementationof thedifferentprovisionsof theAct, should suggestimplementableremedial/correctivemeasuresinrespectoftheQuestionnaire.

Chapter I: Preliminary 1. HavethedefinitionsprovidedintheActservedtheDMinstitutionswellinrelationtotheirmandate

andfunctioning?Arethesedefinitionscomprehensiveandaccurate?

Chapter II: The National Disaster Management Authority2. DoestheActassignadequatefunctionstotheNationalDisasterManagementAuthority(NDMA)in

respecttodisastermanagementsystemofthecountry?DoestheActconfercorrespondingpowersandauthorityupontheNDMAtocarryoutthesefunctions?

3. IsthereacleardemarcationofrolesandresponsibilitiesbetweentheNDMA,theMinistryofHomeAffairs,andtheStateGovernmentsinrelationtodisastermanagementasaresultoftheenactment?HavetheseinstitutionsfounditeasiertorecognizetheirrolesclearlyandperformtheirfunctionsmoreefficientlyasanoutcomeofthelegislativeprovisionsoftheAct?

4. HastheActachievedsynergybetweentheMHA,NDMA,andotherGovernmentofIndiainstitutionsinrespecttovariouspoliciesandprogrammesinrelationtodisastermanagement?

HastheActbeenabletoprovideclearguidanceinrelationtoinstitutions,policies,andprogrammesatdifferentlevelsofgovernmentthroughNDMAandotherbodies?

5. HavetheguidelinesissuedonvariousaspectsofdisastermanagementaspertheprovisionsoftheActbeentheenablingfactorsforstrengtheningpreparedness,mitigation,andresponsecapacities?Whatneedstobedonetostrengthentheimplementationoftheseguidelines?

6. WhatwouldbeyourrecommendationsforimprovingthepresentinstitutionalstructureoftheNDMAsothatitismoretechnicallyresourcedandmoreflexibleandagileinitsfunctions?

Annexure-II Questionnaire for the Review of the Disaster Management Act, 2005

132


7. WhatneedstobedonetostrengthentheroleofNDMAvis-a-visotherministriesandagenciesintheGovernmentofIndia?

8. DoestheNECcarryoutthefunctionsassignedtoitaspertheAct?HowcantheNECcarryoutitsrolemoreeffectively?

9. DoyouviewanoverlapbetweentheNECandtheNational-levelCrisisCommitteechairedbytheCabinetSecretary?Howcantheoverlapbetweenthesetwoimportantbodiesbeaddressed?

10.Whatneeds tobedone in respect toother existingmechanismsat the central level,whicharenotmandatedbytheAct,suchasHigh-levelCommitteeandtheInter-MinisterialGroup?

Chapter III: State Disaster Management Authority11.Howhave theStateDisasterManagementAuthorities (SDMAs)beenconstituted instates? Is the

constitutionoftheSDMAsinconformitywiththeprovisionsoftheAct?

12. IstheSDMA,asithasbeenconstitutedpresently,reallyrequiredatthestatelevel?Ifitisrequired,shoulditcontinueinitspresentform?

13.WhatisthecurrentroleofSDMAatthestatelevel?Isitrestrictedtopolicy-makingordoesitalsoinclude effective implementation? Are the functions assigned to the SDMAs adequate? In actualexperience,aretheSDMAsfunctioningeffectivelyinvariousstates?

14.DoestheSDMAhaveitsownindependentofficeandstaff?Oritisprimarilyacommitteestructure?

15. IftheSDMAsneedtobereorganized,whatarethechangestoitsconstitution,responsibilities,andfunctionsthatneedtobemade?Shoulditbealargelyministerialbodyinitsconstitutionorshoulditconsistlargelyofexperts?

16. DoestheStateExecutiveCommittee(SEC)representthekeydepartments/agenciesfordealingwithdisasters?Hasitbeenaneffectiveinstitutioninrespondingtovarioustasks?HowistheSECsupportedinitsnormalfunctioning?

17.ShouldtheChiefSecretarybetheCEOoftheSDMA?CantheChiefSecretaryrealisticallyfunctionastheCEO,SDMA?

18. What would be the role of the Relief Commissioner vis-a-vis the SDMA? Should the ReliefCommissionerbean integralpartof theSDMAor shouldhebe functioning independentlyof theSDMA?

19.WhoshouldbetheCEOoftheSDMA?ShoulditbetheChiefSecretary,orReliefCommissioner,orsomeotherseniorofficerappointedspecificallyforthisjob?

20.AsaresultoftheemergenceofSDMAs,whathappenedtothepre-existingDepartmentofReliefandDisaster Management? If the Department of Relief and Disaster Management is still functioning,shoulditcontinuetofunctionorshoulditbemergedwiththeSDMA?

21. Inyouropinion,shouldtheSDMAhaveaSecretariattosupportitsfunctioning?Ifso,whereshoulditbelocated?ShoulditbeanindependentSecretariatorshoulditbelocatedintheDepartmentofReliefandDisasterManagement?

133

Annexure

22.Howhas theSDMAbeenperceivedand recognizedbyotherDepartments / agenciesof theStategovernment,districtadministration,andmunicipalauthorities?

23.HowhastheActaffectedthefunctioningoftheState-levelCrisisCommitteeheadedbytheChiefSecretary?DoestheCommitteestillexist?OrhasthecommitteebeenreplacedbytheStateExecutiveCommittee?

Chapter IV: District Disaster Management Authority24.HastheDistrictDisasterManagementAuthority(DDMA)comeintoexistenceaspertheprovisions

oftheAct?Ifso,istheDDMAanimprovementuponthepre-existingdisastermanagementsystematthedistrictlevel?

25.How has been the experience of functioning of the DDMAs? Are the powers entrusted with theDDMAsadequatetotakedecisionsandimplementthemORisitjustacommitteetodeliberateanddirectthelineagenciestoimplementthedecisions?

26.HowhavetheDDMAssucceededindevelopingtheresponsecapacityofthedistricts?Cantheyaccesstheresourcestoimprovepreparednessatthedistrictlevel?

27.HavetheDDMAsbeenabletoimplementmitigationprogrammesbyutilizingtheexistinggovernmentprogrammessuchasMNREGA?Howdotheyaccessexpertassistanceinimplementingtheseschemes?

28.HowistheDDMAdischargingexecutiveresponsibilities?DotheDDMAshaveadequatebudgetandsupportstaff?HavetherequisitestaffbeenprovidedbytheStateGovernment?

29.HowdoestheDDMAensuretheparticipationofcommunitiesandcivilsocietyorganizationsinitsfunctioning?Hasitbeensuccessfulindoingso?

30.HastheActprovidedtheDDMAthepowertocoordinatewithCentralagencies,otherStateagencies,theArmedForces,etc.inseekingresourcesandassistancefordisastermanagement?

Chapter V: Measures by the Government for Disaster Management (Response, Recovery, Preparedness, Mitigation)31.DoestheActempowertheauthoritiesat thenational,state,anddistrict levels toorganizeresponse

in an effective manner? By implication, does the Act enable these authorities to deploy emergencypersonnel(Police,ArmedForces,Search&RescueTeams,FireBrigade,etc.)inresponsetodisasterevents?Canitbesubstantiatedwithexamplesfromrecentdisastersinyourstate/district?

32.HastheActledtobetterpreparednessonthepartoftheStategovernments/districtadministration?

33.Has it led topreparationofState andDistrict-levelDisasterManagementPlans,SOPs, andotherenablingmechanismswhichfacilitatepreparednessandresponse?

34.Has the Act led to setting up of basic response facilities such as EOCs, Early Warning Systems,CommunicationsNetwork,andSearchandRescueTeamswhichwouldimprovetheeffectivenessofdisasterresponse?Itcouldbethecasethataperiodof6yearsistooshortfortheseactivities.Nevertheless,acrossthestates,hastheActhelpedtomakeabeginninginthisdirection?

134


35.Disaster response is primarily organized at the district level. Has the Act empowered the districtauthoritiestoseekbettercooperationandresourcesfromotherdepartments,privatesectorandnon-governmentalsectortoorganizedisasterresponse?Hasthisbeendemonstratedinanyoftherecentdisasters?

36.Has theAct led tobetter assessmentof disaster impacts and losses compared to thepractices thatexistedbeforetheActcameintoeffect?Havetherecentlarge-scaledisastereventsbeenfollowedbyasystematicassessmentofdamagesandlosses?

37.HastheActenabledtheStateanddistrictauthoritiestoimplementrecoverypoliciesandprogrammesinthewakeofdisasters?DoexamplesofrecentfloodsacrossthecountryortheSikkimearthquakesubstantiatethis?

38.HastheActledtoHazard,RiskandVulnerabilityAssessmentsatthenational,stateanddistrictlevels?Havethemitigationplansbeenformulatedonthebasisofsuchassessments?

39.HastheActmadeitmandatoryfortheimplementingagenciestoundertakemitigationmeasures?HastheAct ledto implementationofanumberofstructuralandnon-structuralmitigationmeasures indisaster-proneareas?

40.HastheActsupportedcommunity-basedriskreductionandprogrammes?

Chapter VI: Local Authorities41.HastheActconferredenoughresponsibilitiesonlocalauthoritiesinrelationtodisastermanagement?

Doesitspecifythefunctionsthattheselocalagenciesneedtoperforminsituationsofdisasters?

42.DoestheActhelptheselocalauthoritiesinaccessingfinancialandtechnicalresourcesforperformingthesefunctions?

43.Does theActmake itobligatory forurbanbodies tomaintainacertain levelofemergencyservicesrelatedtofirecontrol,transport,health,andwaterandsanitation?

Chapter VII: National Institute of Disaster Management (NIDM)

44.Has the NIDM supported and responded to training and capacity-building needs as expressed bydifferentauthoritiesacrossthecountries?

45.HastheNIDMprovidedexpertassistancetonationalandstatelevelinstitutionsinrelationtodisastermanagementplans/policies?

46.HastheNIDMbeenabletosupportandstrengthenstate-leveltrainingcentresindisastermanagementindifferentstates?

47.HastheActledtothedevelopmentofaprofessionalcadreintheareaofDisasterManagementatthenationalandstatelevels?

48.HowhastheActencouragedthedevelopmentofspecializedskillsandexpertiseintheareaofDisasterManagement?

135

Annexure

Chapter VIII: National Disaster Response Force (NDRF)

49.HowactivehasbeenNDRFinrespondingtodisasters?Shoulditsorganizationalstructurebeimprovedtoenableittoprovidemorepromptservices?Whataretheorganizationalimprovementsthatneedtobeeffected?

50.ShouldtheStateDisasterResponseForce(SDRF)alsobe included intheDMAct?Orshould itsformationandmaintenanceberegulatedbysuitablegovernmentorders?

Chapter IX: Finance, Accounts and Audit 51.Have responseandmitigation fundsbeensetupat thenational, state, anddistrict levelsasper the

provisionsoftheAct?Ifyes,whathasbeentheprocessfollowedforallocationtowardsthesefunds?

52.Dothese fundsoperateaspermanent, long-standing,andreplenishable fundsORassimplebudgetheadsunderwhichallocationsaremadeaspertheneeds?

53.Howhavethesefundsbeenfunctioningatdifferentlevels?Isthereacleardistinctionbetweenresponseandmitigationwhenallocatingresourcesfromthesefunds?HavethesetermsbeenpreciselydefinedintheActtoallayanyoverlaporconfusion?

54.Whatarethenationalfundsusedfor?Atwhatlevel(national/state/district)arethesefundsspent?Forexample,ifthenational-levelfundisspentatthestateanddistrictlevels,whatistheroleofthestateanddistrictlevelfunds?Doesthenationallevelfundreplenishthedistrictandstatelevelfunds?

55.Similarly,whatarethestatefundsusedfor?Atwhatlevel(state/district)aretheyspent?Iftheyarespentatthedistrictlevel,whatistheroleofthedistrictlevelfunds?Doesthestatelevelfundreplenishthedistrictlevelfund?

56.Howarethesefundsadministered?Whoisthedecision-makingauthorityfortheallocationofthesefunds?Howistheaccountabilityensuredintheutilizationofthesefunds?

57. Ifthesefundsarestatutory,theyneedtobeaudited.Whatarethearrangementsdevisedtoauditthesefunds?

Chapter X and XI: Offences and Penalties, and Miscellaneous58. Isitnecessarytohavesuchelaborateprovisionsforoffencesandpenalties?Insixyearsoffunctioning

howmanytimeshavetheseprovisionsbeeninvokedtopenalizeofficers,employees,andothers?

59.DoestheActconferanyrightsuponcitizensandcommunitiestoseekredresswithrespecttodeficienciesandshortcomingsofDisasterManagement functionsperformedbynational, stateanddistrict-levelinstitutions?

60.How has the Act created awareness of Disaster Management related issues among policy makers,administratorsandspecialists?

61.HowhastheActaddressedsomeoftheemergingrisksarisingfromclimatechangeandvariability,environmentaldegradation,seaerosion,etc?

136


62.DoestheActaddressslowonsetdisasterssuchasdroughtsanddesertification?HavetheprovisionsoftheActbeeninvokedanywheretomitigatetheimpactsofdroughtsanddesertification?

Overall Impact and Effectiveness of the DM Act63. Inthe6yearsoffunctioning,hastheActstrengthenedtheoverallDisasterManagementsysteminIndia

atalllevelsandimprovedthemanagementofdisasters,asevidencedinthecaseofrecentdisasters?

64.Has theActbeenable to leveragemore resources, technical andfinancial, fordisastermanagementsysteminIndia?

65.HastheActbeenabletoprovideagoodbalanceofpowersandfunctionsatthenational,stateanddistrict levels?Has itdecentralizeddisastermanagement inIndiabyallocatingadequatepowerandresourcestostateanddistrict-levelinstitutions?Orconversely,hasitcentralizeddisastermanagementbyconcentratingpowersinnationallevelinstitutions?

DISASTER MANAGEMENT DIVISIONMinistry of Home Affairs, Government of India

Third Floor, NDCC-II, Jai Singh Road, New Delhi-110 001

disaster management division ministry of …...3.8 japan: disaster counter measures basic act 1997...

Documents