Who decides severity?

The lack of normative legal and administrative standards in dealing with a natural calamity and the absence of verifiable criteria to determine its severity puts Kerala at the mercy of the Centre.

Fire and rescue personnel evacuate people from flooded houses in Eloor, in Ernakulam on August 16.

K erala, “God’s Own Country”, may have been devastated by the worst floods in a century, but only a dysfunctional legal system would have allowed the political authorities to quibble over how bad the floods have been for Kerala and its people. As the waters recede after leaving a trail of devastation, the people of the State remain confounded by the legalese adopted to classify the latest natural calamity. Amidst the bitter wrangling over how much money Kerala deserves in order to deal with its misfortune, one thing is clear: there are no transparent and clearly defined criteria to determine how severe a particular natural disaster episode is. This deliberate obfuscation gives the Union government tremendous powers of discretion even as the State is left to fend for itself. This asymmetry is at the root of the simmering controversy in the time of a grave tragedy.

From “calamity of a severe nature” to a “national disaster”, public debates in recent days have simmered over several new and vague terminologies. In its response to a petition seeking the declaration of the situation as a “national disaster”, the Centre informed the Kerala High Court that no such term exists in manuals or statutes. Such information asymmetry is not surprising, considering the arbitrariness that characterises the legal and policy frameworks on disaster management in India. Kerala’s plight necessitates the reassessment of our legal systems that address natural catastrophes in the country. For far too long, these issues have been passed over as tussles between the Centre and the States; the situation is much larger in depth and spread, calling for a detailed and substantive response. It is necessary to graduate from an immediate response of rescue and relief to a comprehensive regime of risk mitigation backed by effective legislation that furthers transparency.

Although the Disaster Management Act came into effect in 2005, following the Asian tsunami of 2004, it took another four years for the national policy on disaster management to be formulated. Seven more years passed before the National Disaster Management Plan (NDMP) arrived. The Supreme Court in Swaraj Abhiyan vs the Union of India and Ors. (2016) has highlighted this laxity of the state in complying with its statutory duties, noting, “The problem is not the lack of resources or capability but lack of will.”

The concern is not merely about the delay in satisfying the statutory requirements, or the arbitrariness marking the whole legislative process; it is a deeper one involving institutional and normative limitations. The fundamental flaw in the Act is that it views disaster management through the lens of governmental authority instead of the community. This outlook is best highlighted by the fact that it completely ignores the widespread displacement of people because of a natural disaster and the extreme distress it causes.

The clamour to declare the latest crisis a “national disaster” and the political heat surrounding it highlight the need for clarity and transparency on how political and administrative authorities respond to a tragedy such as the one in Kerala. On August 20, the Centre clarified in the Kerala High Court that, according to National Disaster Management (NDM) Guidelines, the floods were of “L3 Level” severity, i.e. a nearly catastrophic or a very large-scale disaster that overwhelms the State and district authorities. On August 16, the Disaster Management Division of the Home Ministry declared it a “calamity of severe nature.” Such multiple nomenclatures are bound to create confusion. In essence, all it means is that the National Disaster Response Fund (NDRF) funds would now become available to the State government and MPs may use their discretion and utilise funds of up to Rs.1 crore from their Member of Parliament Local Area Development Scheme (MPLADS) Fund for relief activities.

Currently multiple guidelines and manuals prescribe the standards to determine the nature and extent of a disaster situation. There is an urgent need to standardise the methodology of assessing a disaster. The non-binding nature of the guidelines and manuals and the application of different standards by the Centre and the States to define a disaster, combined with either the lack of political will or the egregious use of a disaster for narrow political gain, has resulted in arbitrariness in the matter of States declaring the severity of a particular disaster. This was made glaringly evident in Swaraj Abhiyan vs Union of India & Ors. , when the Supreme Court pulled up the governments of Gujarat, Haryana and Bihar for their hesitation to even acknowledge, let alone address, the severe drought situation in their States. Even while admitting the difficulty in laying down specific parameters or mathematical formulae, the apex court made it clear that the elbow room available to States in recognising a disaster situation should be minimised and there needs to be coherence in the parameters employed by the States and the Centre. More importantly, the Supreme Court came down heavily on the Centre for using the argument of “federalism” to absolve itself of its own constitutional responsibilities. Reminding it of the importance of maintaining a fine balance between federalism and constitutional responsibility, the court observed that in the name of respecting the authority of State governments, the Central government cannot wash its hands of its own public duty.

This applies squarely in the present situation too. The collective appeal to declare the tragedy a “national disaster” is, in fact, a cry for solidarity of the Centre with the suffering population of the State. Past experiences, wherein the quantum of assistance from the Centre has largely been driven by political considerations, are a corroboration that the Centre often fails to live up to the constitutional aspirations of its people.

Organisational lacunae

Ill-defined and conflicting institutional structures under the disaster management legal framework are among the major obstructions to effective disaster management. Multiple authorities exist with overlapping responsibilities mainly because of the lack of clarity in defining their ambit and demarcating their roles. The passage of the Disaster Management Act was an opportunity to unify the disaster management institutional framework, but the overlapping functions and powers of authorities mentioned thereunder, coupled with their existence alongside some of the old institutional structures, impair the effectiveness of the framework. This is besides the absence of transparency and accountability mechanisms under the Act.

Disaster management requires a multidisciplinary and multi-agency approach. The multiplication of authorities with no clear delineation of responsibilities only creates more confusion at a time of a grave crisis. Neither the National Disaster Management Authority (NDMA) nor the National Executive Committee (NEC)—the new institutional mechanisms envisaged under the Act—has been able to realise its objectives. The Task Force constituted by the Central Government in 2010 to review the functioning of the Act had called for revisiting the existing institutional structure. A typical example of the inadequacies and confusions pervading the disaster management institutional framework is that of the structure and functioning of the NEC. Both the Task Force and the Second Administrative Reforms Commission (ARC), 2006, recommended the scrapping of the NEC as its functions coincided with that of the already existing National Crisis Management Committee (NCMC) chaired by the Cabinet Secretary. The structure of the NEC, chaired by the Union Home Secretary and comprising 14 Secretaries to the State and Chief of the Integrated Defence Staff as members, hindered it from performing the multifarious tasks assigned to it. The Comptroller and Auditor General’s Performance Audit of Disaster Preparedness in India (2013) reveals how the NEC, since its inception in 2006 and until the CAG Audit, met only thrice in a span of six years, whereas as per the NEC Rules of 2006, they were required to meet at least once every three months. It is not surprising that formulation of the NDMP was delayed by over a decade, as the NEC was tasked with this responsibility. Some of its mandated functions even coincided with that of the NDMA (see Section 6(2) and 10(2) of the DM Act).

The ambiguities are not confined to statutory bodies at the national level, but extend to the State Disaster Management Authorities and State Executive Committees. Further, there is a significant degree of overlap in the powers and functions of the Central government and State governments under the Disaster Management Act. The national policy on disaster management, the NDMP and the NDM Guidelines, place the primary responsibility for rescue, relief and rehabilitation on State governments, while the Centre is expected to extend financial, logistic and policy support to State governments. The Act, besides not mentioning this important aspect, lacks precision in enunciating the powers of the Centre and the States. These serious lacunae have stymied timely and effective response to a disaster.

It is also significant to note that disaster management is not enumerated in any of the Lists under Schedule VII of the Constitution, and falls under Residuary Powers of the Union under Entry 97 of the Union List. Various committees, including the Second Administrative Reforms Commission, the National Commission to review the working of the Constitution and the Task Force have recommended that disaster management be placed in the Concurrent List as a means to ensure vertical and horizontal linkages in effective disaster management.

Neglected NDMA

While these obvious inadequacies plague the institutional and legal mechanism, there is a growing threat to the very existence of the disaster management framework. The NDMA, the primary body responsible for laying down policies, plans and guidelines, suffers from excessive executive incursion. The Centre’s utter neglect of the institution is evident from the fact that half the positions in the NDMA remain vacant. In the last few years, the NDMA has functioned with four members as against the nine mandated under the Act. Disaster management experts in the field of disaster management warn against the growing tendency of the Ministry of Home Affairs (MHA) to control the functioning of the NDMA. This is evident from the developments since 2014. Through an Executive Order, the Cabinet rank of the Vice Chairman of the NDMA and the Minister of State ranks of members were reduced to that of Cabinet Secretary and Secretary to Government of India respectively. The Central government’s response to a recent petition filed in the Delhi High Court supports this questionable action of the MHA. It refuted the petitioner Gaurav Kumar Bansal’s argument that the vacancies had rendered the institution dead. The Centre located its primary argument on the guidance that the NDMA received from the Prime Minister’s Office (PMO) and the MHA—an open admission of increasing centralisation in disaster management in India. The clarification provided by the MHA to the CAG on the irregular functioning of the NEC is also worth recalling. The MHA informed the CAG that it had been coordinating disaster response even before the NEC came into being. The CAG strongly censured the functional disorderliness and observed that the “MHA functioned as an executive arm of the NDMA.”

Financing disaster management

The Second Finance Commission (1955-60), initiated the setting up of a “Margin Fund” to finance State-level machineries to meet expenses necessitated by natural calamities. Twelve finance commissions later, the present arrangement comprises the NDRF and a set of State Disaster Response Funds (SDRF) which have replaced the Margin Fund.

The NDRF was constituted under Section 46 of the Disaster Management Act in the Public Account of India. Through the years, the budget allocation to the NDRF (which is financed through a “National Calamity Contingent Duty” levied on certain items) has seen ups and downs ranging from as low as Rs.2,500 crore in 2018-19 to Rs.6,450 crore in 2016-17. Each SDRF is financed by the Centre and States in a 75:25 ratio and 90:10 ratio for special category States. The balance in the SDRF is non-lapsable and is to be invested in readily marketable government securities so that it may be available when needed, without the State having to curtail other expenditures or approach the Centre for assistance.

In the event of a disaster, the first round of assistance flows from the SDRF and in cases of “calamity of severe nature”, the Union Government supplements the effort of the State government by providing aid and assistance from the NDRF. Section 46(2) of the Act, in accordance with the operational guidelines of NDRF (4.1), stipulates that funds shall be advanced for emergency response, relief and rehabilitation once the balance in the concerned SDRF runs out. Further, the operational guidelines explicitly state that repair and restoration activities (as opposed to relief and rehabilitation) after a calamity should be funded from the State Plan and not from the response funds (SDRF or NDRF).

The blatant violation of these guidelines in pursuit of political appeasement was brought to light in the CAG’s report in 2013. Nearly Rs.3,000 crore was spent on inadmissible items for repairs and restoration between 2010 and 2012. A quick look at the distribution of NDRF funds in the past five years (a total sum of Rs.29,404 crore) indicate that these funds were used more as a political tool than for disaster relief. It is a matter of grave concern that even though the NDRF was to be placed at the disposal of the NEC to be used for emergency response, it was noted by the Task Force of the Government of India that the NDRF was not made available to NEC but was operated by the MHA in contravention of the Act.

Misappropriation

There have been serious misappropriations from the SDRF in the past, including a Rs.237-crore scam in Gujarat during 2007-12. The CAG’s Report No.5 (2013) made a strong objection to this expense, observing that the “Expenditure [was] incurred in State even when there was no disaster in the State.” The total misappropriation from SDRF during this period amounted to Rs.386 crore. It is for these reasons that there are strict restrictions now on spending from the SDRF, with a cap of 10 per cent of available funds in one go.

To further complicate matters, these funds have concurrent jurisdiction. For instance, there is no clear demarcation of Central assistance, State funds and those from international sources in the context of the objectives of these allocations. There is no provision in the Act that specifies conditions or situations to assign jurisdiction or priority to funds. It is this lack of clarity that caused discontent in Kerala where the quantum of funds from various sources became a matter of discussion among the general public.

In effect, India has neither a functional institutional framework nor a working mechanism to undertake rehabilitation and reconstruction after a disaster. The Act mandates the establishment of a National Disaster Mitigation Fund, which has not happened decades after its enactment. Notwithstanding the situation, India has received international aid for disaster mitigation over the years.

Many States affected by disasters have sought loans from international development agencies such as the World Bank for the purpose of rehabilitation and reconstruction. This has been the case in Uttarakhand ($250 million), Jammu and Kashmir ($250 million), Andhra Pradesh ($250 million), Odisha ($218.60 million) and for tsunami relief ($680 million). There is much irony in the proposition that it would be a national shame to seek foreign aid, but that national prestige would somehow be burnished by borrowing on commercial terms.

It is tempting to downplay the debate around the floods to a State vs Centre standoff, but at the heart of the tussle is the grave ambiguity in the laws, the nomenclatures used and the serious asymmetry in the powers of the two sides. There is an urgent need to move towards a regime that exists on a unified, codified and systematic approach to disaster management in which the duties of the Centre and the States are defined clearly. Until then, confusion will continue to reign, even at a time of a grave humanitarian crisis.

This article is the joint work of Neenu Suresh, Noel Benno Joseph, Linitha Mathew, Nissy Solomon and Srilakshmi Nambiar at the National Law School India University, Bengaluru. It is part of the team’s ongoing research on disaster management laws and policies.