DM - 7- Laws in Disaster Management

7/30/2019 DM - 7- Laws in Disaster Management

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Laws in Disaster

Management Anuj Kumar Vaksha


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Role of law

Law Post DisastersPre - disasters

In situations of Disasters

General, Institutional, Regulatory


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Role of law(Pre-disaster)

PreventiveEndeavours for risk reduction

Hazard prevention particularly the manmade disasters Vulnerabilities minimization/ Capacity buildingLays standards for disasters characterization

Examples Hazardous Waste RulesHazardous Chemical RulesBio-Medical Waste Management and Handling Rules 1998Environment Protection Act 1986Factories Act 1948

BasisNobody knows how the disaster is going to strike, but from ourexperiences and ingenuity it can certainly be contemplated whatthings necessarily invite disaster sooner or later. Law prohibitssuch things thereby pre-empts occurrence or recurrence of certaindisasters.


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Role of law

During disaster Administrative

In a situations of extreme chaos,confusion, agony, scarcity whichfollow any disaster, the lawendeavours to continue/ensure therule of law in such situations.


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Post disasterReactive

Lays measures for relief and rehabilitation

Strives to compensate the losses to theextent possible by measures like insurance,ex-gratia awards

ExamplesPublic Liability Insurance Act 1991Bhopal Gas Leak Disaster (Processing of Claims) Act 1985


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Role of Law

InstitutionalCreates institutions and authorities at variouslevels of governance to enforce the mandate of law in pre, post and situations of disastersExample

Disaster Management Act 2005The National Environment Tribunal Act 1995

GeneralLegislation creates enabling environment andinstitutional framework for thorough disastermanagement.


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Disaster, Environmental jurisprudence &Constitution

DisastersManmade,

technological

or natural

Human LossesMaterial,Social,

Psychological,

Human life

Environmental Losses

Articles 21Constitution of India

Article 51A (g)Constitution of India


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Article 21Constitution of India

Protection of life and personal liberty No person

shall be deprived of his life or personal liberty

except according to procedure established by law.


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Article 51A (g)

Fundamental duties It shall be duty of every citizen of India

(g) To protect and improve the natural environmentincluding forests, lakes, rivers and wild life and to

have compassion for living creatures


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Landmarks in enviro-constitutional jurisprudence in IndiaWholesome environment : Fundamental Right

Every person enjoys the right to a

wholesome environment, which is a facet

of the right to life guaranteed under

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


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Landmarks in enviro-constitutional jurisprudence in IndiaWholesome environment : Fundamental Right

Article 21 protects the right to life as afundamental right. Enjoyment of life includingthe right to live with human dignityencompasses within its ambit, the protection

and preservation of environment, ecologicalbalance free from pollution of air and water,sanitation, without which life cannot be enjoyed.

Any contra acts or actions which would causeenvironmental, ecological, air, water, pollutionetc. should be regarded as amounting toviolation of Article 21.

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


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Landmarks in enviro-constitutional jurisprudence in India

Role of government agencies

There is constitutional imperative on thestate government and the municipalities,not only to ensure and safegaurd properenvironment but also an imperative dutyto take adequate measures to promote,protect and improve both the man-made

and natural environment. Virender Gaur v. State of Haryana 1995 (2) SCC577


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Enforcement agencies are under an obligation tostrictly enforce environmental laws.

Indian Council for Enviro-Legal Action v. Union of India1996 (5) SCC 281

Government agencies may not plead non-availability of funds, insufficiency of staff other

insufficiencies to justify the non performance of their obligations under the environmental lawsDr. D.L. Wadhera v. Union of India AIR 1996 SC 2969


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Government development agencies charged withdecision making ought to give due regard toecological factors including (a) theenvironmental policy of the central and state

government; (b) the sustainable developmentand utilization of natural resources; and theobligation of the present generation to preservenatural resources and pass on to futuregenerations an environment as intact as the onewe inherited from the previous generation

State of Himachal Pradesh v. Ganesh Wood Products AIR 1996 SC 149


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The precautionary principle requiresgovernment authorities to anticipate,prevent and attack the causes of environmental pollution. This principle alsoimposes the onus of proof on thedeveloper or industrialist to show that his

or her action is environmentally benignS. Jagannath v. Union of India AIR 1997 SC 811

(Shrimp Culture case)


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The power conferred under anenvironmental statute may be exercisedonly to advance environmental protectionand not for a purpose that would defeatthe object of the law.

Indian Council for Enviro-Legal Action v. Union of India1996 (5) SCC 281 (CRZ Notification case)


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The state is the trustee of all naturalresources which are by nature meant forpublic use and enjoyment. The public at

large is the beneficiary of the sea-shore,running waters, air, forests andecologically fragile lands. These resourcescannot be converted into privateownership

M. C. Mehta v Kamal Nath 1997(1) SCC 388(Span Motels case)


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Landmarks in enviro-constitutional jurisprudence in Indiadeterrence for the defaulters

Stringent action ought to be taken againstcontumacious defaulters and persons whocarry on industrial or development activityfor profit without regard to environmentallaws.

Indian Council for Enviro-Legal Action v. Union of

India AIR 1996 sc 1446 (Bichri case)


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The polluter pays principle which is the part of the basic environmental law of the land requiresthat a polluter bear the remedial or clean up

costs as well as the amounts payable tocompensate the victims of the pollution.Indian Council for Enviro-Legal Action v.Union of India AIR 1996 sc 1446 (Bichri case)


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We are of the view that an enterprise which isengaged in a hazardous or inherently dangerousindustry which poses a potential threat to the

health and safety of the persons working in thefactory and residing in the surrounding areasowes an absolute and non-delegable duty to thecommunity to ensure that no harm results to

anyone on account on hazardous or inherentlydangerous nature of the activity it hasundertaken. .CONTD.


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Where an enterprise is engaged in ahazardous or inherently dangerous activityand harm results to anyone on account of

an accident in the operation of suchhazardous or inherently dangerous activitythe enterprise is stricly and absolutelyliable to compensate all thiose who areaffected by the accident and such liabilityis not subject to any of the exceptions

Shriram Gas Leak Case AIR 1987 SC 1086

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DM - 7- Laws in Disaster Management