The world is witnessing rapid urbanisation. More than half of the world population today resides in cities, towns and rapidly coming up urban agglomerations. The major urbanisation is happening in developing countries which act as attractive markets for the developed world, leading to rise in job opportunities, and leading to rural to urban migration. Globally, more people live in urban areas than in rural areas, with 54 per cent of the world’s population residing in urban areas in 2014. In 1950, 30 per cent of the world’s population was urban, and by 2050, 66 per cent of the world’s population is projected to be urban. Africa and Asia are urbanizing faster than the other regions and are projected to become 56 and 64 per cent urban, respectively, by 2050 (UN:2014). This creates extreme pressure on urban areas to create housing and other civic amenities for the people who land up in search of jobs and better life. Although it leads to development in terms of infrastructure but this development is largely unsustainable and involves very high ecological costs. It leads to disasters which were never imagined and the development was largely ignorant of them. Urban Floods is one such menace. Lately, India has been witnessing these urban floods in various metro cities like Bangalore, Chennai, Srinagar, Rishikesh etc. NDMA considered encroachment of lakes, natural streams, watercourses due to rapid urbanisation as a major factor leading to urban floods (NDMA:2010).
How can we address “urban floods” in law? There are various environmental laws in India. In addition to these there are various building bye laws. The fact in issue remains that these plethora of laws have been unsuccessful in preventing any kind of natural disasters. Moreover, they have failed ghastly in even addressing the elephant in the room i.e. “corruption” which enables building structures on floodplains. In Vasundhra Pathak Masoodi v UOI (2014) the court held that massive encroachments and erection of many structures and hotels have led to the reduction in the size of the lake in Srinagar. INTACH’s Jammu and Kashmir chapter had observed that construction in low lying areas of Sringar, especially along the banks of the Jhelum had blocked discharge channels of the river almost five years ago. Similar, was the case of Uttarakhand floods. In Bangalore, IISc Report in 2015 revealed that between 1973 and 2013 there has been a 79% decrease in the area of water bodies. The House Committee on Tank Encroachment under the Karnataka Legislature released a press release with the name of encroachers who have killed lakes in and around Bangalore. The government agencies alone have encroached more than 30% of the total encroached area of 1238 hectares according to the report. The Uttarakhand flash floods (2013) also saw massive loss of life and property due to construction on floodplains. The viral video of a building falling apart as a house of cards is hard to forget.
The River Regulation Zone (RRZ) was conceptualised on the lines of Coastal Regulation Zone in 2012. However, it still waits to see the light of the day. There had been numerous judicial interventions where the Courts have ordered to declare a “no development zone” in floodplains and riverbeds but no law is in place regarding the construction on floodplains. The Allahabad High Court judgment in 2011 that had set precedence in that it for the first time identified the river’s limit as its highest flood level, and set a limit (500 metre from the highest flood level) to where construction is permitted. The RRZ needs to be notified and implemented as soon as possible.
We need to create a legal framework within which “urban floods” can be addressed, taking into account the Hohfeld’s right-duty paradigm of law making. The right of citizens to be protected against the disasters need to be recognised by the government. It is the positive duty of the State to ensure that the reckless developmental activities and encroachments on the floodplains and riverbeds. These water spaces are part of the “commons”. Commons are forms of direct access to social wealth, access that is not mediated by competitive market relations. A community is formed around and dependent on the availability and accessibility to commons or even struggle towards it. However, ignoring the communities’ right over “commons”, encroachments are done, leading to disasters. Disasters in India are governed by DMA’2005. We argue that disasters need to be looked into more holistically. They involve violation of various environmental laws and violation of rights of communities. The DMA’ 2005 needs a complete overhauling wherein the positive rights of citizens to be protected against disasters need to be emphasised. If State is found of guilty of failing to protect people from disasters which can be easily averted if existing laws are followed then the accountability needs to be fixed by the DMA’2005. The scope of the Act requires to be widened from being just a “managing” instrument to “preventing” mechanism.
DMA’2005 can be amended to establish an authority on the lines of “Consumer Protection Forums”, wherein common people can approach the concerned Disaster Authority to report about any illegal and hazardous encroachments which can result in “manmade disasters”. This will also engage communities in the protection of environment. The common people cannot be expected to approach courts. The judicial system in India is very time consuming and also a bit intimidating. The cost of lawyers is also discouraging.
The law needs to locate the disaster within a socio political framework by recognising the connection between the State, private developers and flood risk. The official discourse on urban flood management usually ignores the causes and mainly emphasises on the risk management. The developmental construction which takes place on floodplains, water spaces leads to massive flash floods. It is high time that the social, political and legal complexities in the governance of urban floods and other natural disasters are recognised by the State.
