[dropcap]O[/dropcap]n Jan 26, India’s 65th Republic Day, 21 tourists died in a boat accident off Viper Island, just near the dockyards in Port Blair in the Andaman and Nicobar Islands. It was reported that the boat was overcrowded and there were no life jackets or divers on board.
A report the next day quoted the Andaman and Nicobar Islands Lt. Governor as saying: “For the safety of tourists, rules are already there. What we need is proper implementation.” Reports also said that two months ago, a tourist wrote a letter to the union tourism ministry about the lack of safety standards in the islands’ tourism circuit. The letter was forwarded to the local authorities.India witnesses a fair number of such tragedies annually and little changes in terms of implementation of the multifarious laws, rules and regulations for prevention of mostly avoidable manmade disasters.
The question is how much more time and loss of life will it take for us to change?
As a nation, we tend to wake up to harsh implications of this laxity only when we feel its impact first-hand. Else, we see poor execution of legislation as somebody else’s problem. The fact is that non-adherence to various safety-related rules and regulations by commercial entities and indifferent enforcement by authorities concerned are tantamount to wilful negligence and should be entirely unacceptable.
The Disaster Management Act, 2005, that includes in its scope manmade disasters, was enacted with the express aim of providing the requisite institutional mechanisms for planning and implementation of a holistic approach to disaster management, including, in particular, preparedness and mitigation apart from coordinated and prompt response. The Act defines mitigation as measures aimed at reducing the risk, impact or effects of a disaster or threatening disaster situation.
The institutional mechanism laid down by the Act includes, apart from the National Disaster Management Authority and the National Executive Committee at the centre, the constitution of a State Disaster Management Authority (SDMA) in every state headed by the chief minister.
The SDMA inter alia lays down disaster management policies and guidelines and reviews implementation of the state disaster management plan. The state executive committee headed by the chief secretary is to monitor implementation of disaster management plans by state departments and district authorities.
The district disaster management authorities have been given wide-ranging powers and responsibilities with regards to planning and implementation of district-level disaster management. Comprehensive attention to risk assessment, mitigation, preparedness and capacity building, apart from prompt and effective response, are invariably a part of these statutory provisions.
Further, the national executive committee, chaired by the home secretary, can give directions to the central government ministries or departments concerned, the state governments and the state authorities regarding measures to be taken by them in response to any threatening disaster situation or disaster.
Not only that, if the national executive committee, state executive committee or the district authority feels that provisions of any rule, regulation, notification, guidelines, instructions, order, scheme or by-laws are required to be made or amended for preventing disasters or their mitigation, it can mandate these.
The recent accident suggests that there may be a need to review existing laws/rules governing commercial boating. But, as every Indian would probably agree, our biggest problem is not so much the law as its enforcement.
We need to strengthen the application of safety-related rules and regulations preferably through mandatory public disclosure (for e.g. permissible number of passengers and availability of safety measures like life boats being displayed on every tourist boat) and also through better regulatory inspections which include not only capacity building of licensing/inspecting agencies but also making them firmly accountable for lapses.
The Law Commission’s Consultation Paper on Manmade Disasters states that “the preventive aspect is being neglected. Regulatory mechanisms to ensure preventive measures are utterly lacking and the law is too lenient towards those violating the safety regulations or otherwise contributing to the root causes of disasters”.
Though this paper focusses on building collapses, fire outbreaks and stampedes and has specifically left out rail, road and boat accidents, the underlying observations and principles would apply equally to these disasters.
Attention has been drawn to the provisions of the Disaster Management Act wherein non-performance of duties are punishable with imprisonment for a term which may extend to one year or with fine or both.
Highlighting the importance of greater accountability for better enforcement of laws for prevention and control of manmade disasters, it has been rightly pointed out that this applies equally to officials as well as those in charge of management or are entrusted with the duties connected with prevention and safety.
There is no reason why gross dereliction of duties on the part of officials and casual and careless manner of performance of duties should not attract penal provisions.
The section dealing with offences and penalties in the Disaster Management Act is in fact broad enough to cover many acts of negligence and gross dereliction. However, based upon the observations and recommendations of the Law Commission, some amendments and specific rules could be framed to provide greater clarity. For example, in the reference to public servants, inserting the words “fails to perform” and “neglects to perform” along with the existing “ceases” or “refuses to perform duties imposed under the Act”, may facilitate wider applicability of these penal provisions and better accountability vis-à-vis the provisions of the Act. The fact that Indian courts have held that the defence of sovereign immunity is alien to the concept of guarantee of fundamental rights in cases of violation by public officials and would apply only to a limited range of cases and that courts have applied strict liability (of public as well as private agencies) in cases where there is direct contributory negligence in gross violation of petitioners’ rights to life and personal liberty, should help India bring in a culture of greater accountability.
Needless to say, this also requires streamlining of laws and legal procedures so as to bring them within the reach of ordinary citizens and to avoid vexatious litigation directed at the state and its functionaries.
Also, our public must be educated about safety measures and their enlightenment to demand this. I wonder if foreigners who are accustomed to much higher standards of safety would have travelled in a boat sans life jackets. Our public also needs to be better informed about their rights as consumers and citizens to be able to seek redress for such negligence.
Overall, it is high time that public and private agencies rose to the occasion. They should either voluntarily act to improve the safety culture in this country or be held accountable for their negligence.
By Archana G. Gulati
Footnote:
In Nagaland, earthquakes, fires, forest and otherwise, landslides, and flash floods are a few of the calamities which can occur. We only need to look around to gauge if we have prepared ourselves and our environs to meet the challenges of a natural calamaity.
