[Apat Dharma] Disaster Management Act overrides other laws during disasters: Kerala High Court

The Kerala High Court recently observed that the Disaster Management Act, 2005 (the Act) effectively gives the concept of "Apat Dharma", statutory recognition and that in times of disasters, the Act will and should override the provisions of other laws as it is intended to protect lives (MH Vijayan v. State of Kerala).The order passed by Justice N Nagaresh stated that without the overriding power of the Act to protect lives, all other rights liberties and freedoms will have no meaning."Section 72 of the Disaster Management Act, 2005, in effect, gives the general law of “Apat Dharma”, a statutory recognition. In times of disasters, the Disaster Management Act, 2005 will and should override the provisions of other laws, because the Act is intended to protect the very life of the citizens, without which the words right, liberty or freedom and even the word Constitution will have no meaning," the Court said..The Court also expanded on the concept of 'Apat-Dharma' or rules of conduct in times of danger as it related to the Act."Providing for special laws to govern difficult times, overriding or even superseding ordinary laws, is not a novel concept or invention of modern democracies. Deliberate freezing of or departure from ordinary laws during difficult times, existed in all societies, even in monarchies, theocracies and other forms of States. In India, such special legal mandates were described as “Apat-Dharma”. Apat-Dharma means a course of procedure not usually proper or permissible in ordinary times but allowable in times of extreme distress or calamity," the judgment stated. .Laws that are meant to govern in extra ordinary times such as natural disasters are necessary so that loss of life and property can be minimised."The laws meant to govern the times of peace may become insufficient and even hurdles to tackle situations in extra ordinary times like war, calamities, catastrophes, pandemics and disasters. A democratic State should have the power to make such laws which would help to overcome such disasters with least hardship and loss of life and property of its citizens," the Court opined..The judgment was passed in a plea by two individuals challenging the work of mechanised loading and transportation of mineral sand from the river mouth at Thottappally Pozhi (sand bank between the sea and back waters) which is situated amidst the paddy fields at Kuttanad, Alappuzha During heavy monsoon , the rivers in neighbouring districts overflow and the flood water enters the Kuttanad Region causing damage to the paddy land. Therefore, the Government of India constructed a 11-km long artificial water canal to drain flood water to ArabianSea. According to the petitioners, the sand dunes created by the sea act as a strong barrier to resist the impact of natural calamities. If these sand dunes are removed, then high tidal waves will reach the land causing damage to the area, they contended.However, mining companies are apparently permitted to remove the sand dune at the Pozhi mouth and therefore, they sought directions prohibiting the same..The petitioners argued that the act of permitting mining companies to operate at the Pozhi violates the provisions of: The Mines and Minerals (Development and Regulation) Act, 1957;Environment (Protection) Act, 1986;Coastal Regulation Zone (CRZ) Notification, 2011..On these contentions, the Court found as followsRemoval of sand bar from downstream of Thottappally Spillway pursuant to the orders passed in exercise of powers under the Disaster Management Act would not amount to “mining operations” as defined under Section 3(d) of the Mines and Minerals (Development and Regulation) Act, 1957 for the reason that winning of minerals is not the primary or secondary intent, purport or priority behind the removal of sand bar. The Court referred to the judgments of the Supreme Court in Bhagwan Dass v. State of U.P. and Ors and Bharat Coking Coal Ltd. and Anr. v. State of Bihar and Ors. Regarding whether the activity carried out by the respondents requires Environmental Clearance, the Court noted that the Central government, in exercise of the powers conferred by Section 3 of the Environment (Protection) Act, 1986 has amended the EIA Notification, 2006. Moreover, the High Court of Uttarakhand in Jai Prakash Badoni and Ors v. Union of India and Ors. had considered the impact of Section 34 of the Disaster Management Act, 2005 on the dredging activity and held that having regard to the public purpose underlying the maintenance of these water bodies, if the dredging is undertaken for the purpose of maintaining water bodies, no environmental clearance is required.The petitioners contention that the desilting operations being carried out violates CRZ Notification was also rejected as paragraph 3(iv)(d) of the CRZ Notification 2011 will not be applicable to the case since the activity undertaken is not for land reclamation, bunding or disturbing the natural course of seawater..Ultimately, the issue the Court had to consider was whether there were any violations of the Disaster Management Act. The Court recalled the constant threat of disaster that has tormented Keralites, especially those living in the Kuttanad area, ever since the 2018 floods."The fact that the Kerala experienced and was tormented with disastrous floods in the years 2018 and 2019 cannot be disputed. In fact, in the current year also, Kerala is under the threat of floods and has already suffered loss of life due to landslides resultant of heavy rains, though such calamity was not in Thottappally area. The heavy rains coupled with slow discharge of storm water through the Thottappally Spillway to sea, has inundated a considerable area in Kuttanad during this year also," the Court noted.The Court said that it was after the 2018 floods that the MS Swaminathan Research Foundation and IIT Madras recommended clearance of the Sand Bar at Thottappally Pozhi and deepening and widening of the leading channel for depressing the flood problem in Kuttanad area.Moreover, Court found that Section 72 of the Act, 2005 gives overriding effect to the provisions of the Act and accordingly dismissed the petitions.[Read Order]