The entire world is badly hit by the second wave of COVID- 19 with a large population facing medical oxygen shortage! Read on to know how MHA invoked DMA to fight this oxygen crisis.
Is COVID- 19 a natural disaster? It will be very interesting for you to know that COVID- 19 has been considered as a natural disaster and the pandemic as humanity's worst crisis ever since World War II. COVID-19 is the first PAN India biological disaster being steered by the legal and constitutional institutions of our country. The lockdowns had been imposed under the Disaster Management Act, 2005 in order to prevent the spread of deadly coronavirus. Now, the repeated use of the word "Disaster" might provoke a question in your mind as to what is the stand of our Indian Constitution on this subject? The Indian Constitution is silent on the subject 'disaster' but the legal basis of the Disaster Management Act is Entry 23 and 29 of the Constitution.
What is Disaster Management Act, 2005?
"The secret of change is to focus all of your energy, not on fighting the old, but on building the new."
With growing dependence on the virtual world due to lockdown being imposed at various states, employees have become heavily dependent upon the technology (Example: Work from home). No doubt, that sometimes it gets very challenging, here's what we can predict about our future, that there will be immense opportunities available to us as working with the use of technology will make work go easy without any physical contact with one another due to the national disaster. However, unfortunately there are exceptions such as the daily wage workers.
DMA was passed in 2005 with a legislative intent to "provide for the effective management of disasters". DMA defines a 'disaster' as "a catastrophe, mishap, calamity or grave occurrence in any area arising from either natural or man-made causes or by accident or negligence that results in substantial loss of life, human suffering, or damage to and destruction of property or the environment" [Sec. 2(d)]. The nature or magnitude of a disaster is beyond the coping capacity of the community in the affected area.
Some of its essential features are as follows:
- It provides for the establishment of a National Disaster Management Authority (NDMA), State Disaster Management Authorities and District Disaster Management Authorities.
- The NDMA enshrines the policies, plans and guidelines for management of disaster under Sec. 6. Similarly, State, District and Local level Disaster Management Authorities were established by high functionaries who worked in coordination.
- This Act is also not immune from loopholes. Reflecting on major lessons from the Covid pandemic, NDMA member Kamal Kishore stated that DMA has major loopholes and the "next generation of disaster management effort has to invent an urban model".
MHA's move on Medical Oxygen Shortage
The MHA had recently invoked its powers under the DMA, 2005 and directed the states to ensure that the inter-state supply of medical oxygen should not be prohibited for any reason otherwise officials in violation of the order will be held responsible. This urgent action was taken after various States such as Delhi faced an immense shortage of medical oxygen. Subsequent to which, some of the political leaders accused the neighboring states for blocking the supply of oxygen amidst the second wave of COVID- 19 infections.
- According to the statement made by MHA. "Authorities shall be instructed to allow free inter-state movement of oxygen carrying vehicles."
- The implementation of these directions will be personally insured by District Magistrates/ Deputy Commissioners and Senior Superintendents of Police/ Superintendents of Police/ Deputy Commissioners of Police.
- Sections 51-60 of the DMA, 2005, enshrines that violation of such restrictive measures will attract imprisonment for a term which may extend up to1 year or a fine or both.
Few more Acts have also been invoked by the State governments in addition to DM Act such as the Epidemic Diseases Act, 1897and other state specific Public Health Acts (for example: Tamil Nadu Public Health Act, 1939) to deal with the Covid and oxygen crisis. Apart from this, various states have issued COVID specific Regulations.
Example: Kerala invoked various other acts along with its legislative power under Entry 6 (Public health and sanitation) of State List and issued 'Kerala Epidemic Diseases Ordinance, 2020'.
Settled Principle of Law under Olga Tellis Case
Olga Tellis & Ors Vs. Bombay Municipal Corporation & Ors. (1985) was a historic judgment under which the Hon'ble Supreme Court held that the right to life under Article 21 guarantees to the Indian citizen, the right to earn a livelihood and further claims that State cannot deprive a citizen of his livelihood except in accordance with a just and fair procedure established by law.
- The very law settled by the Constitutional Bench of the Supreme Court in Olga Tellis case was that, any person who is deprived of his right to livelihood except in accordance with a just and fair procedure established by law can challenge such deprivation under Article 21 of the Constitution.
- But do you know? That this principle was somehow violated as lakhs of people lost their jobs after lock down was declared without any proper notice at various places.
Criticism of the Disaster Management Act, 2005
- The act has been criticized for marginalizing Non-governmental organizations (NGOs), elected local representatives, local communities and civic groups.
- It fosters a hierarchical, bureaucratic, command and control, 'top down', approach which provides the central, state, and district authorities sweeping powers.
- It is also alleged that the "Act became a law almost at the will of the bureaucrats who framed it". This goes without say that at times when a Government is vested with immense power, it shows a tendency to over- reach and centralize powers.
The Union Home Ministry had constantly issued guidelines to States under the Disaster Management Act regarding nationwide lockdown and its extensions multiple times to battle with the deadly coronavirus. But, one thing that cannot be ignored is that seeking help of the Disaster Management Act, Centre has made States dependent upon it thus, violating the federal feature of separation of powers between these two bodies. The DMA had been invoked specially to fight the covid- 19 situation which created havoc in our day to day lives.
On the other hand, the DMA gave the Centre immense and vague powers under which Centre intruded with State Subjects as well such as Health, law and order. No doubt, that the COVID- 19 pandemic has taught us a lot regarding the improper implementation of various executive actions, ignorance amongst the public and failure of the authorities in tackling with the situation, when it is at its worst stage.