NDMA To Recommend Guidelines For Ex Gratia Assistance For Loss Of Life To Family Members : Covid-19

Reepak Kansal v. Union of India and others

WITH Gaurav Kumar Bansal v. Union of India and others

WRIT PETITION (CIVIL) NO. 554 of 2020 with WRIT PETITION NO. 539 of 2021

Decided on June 30, 2021.

Counsel for Petitioners - Shri S.B. Upadhyay, Shri Gaurav Kumar Bansal

Counsel for Respondents - Shri Thushar Mehtha

A Supreme Court bench consisting of Justice Ashok Bhushan and Justice M.R. Shah decided the present case.

The two Writ Petitions have been filed in public interest seeking the respondent ( Central /State Government) to provide ex gratia monetary compensation to the families of those who succumbed to Covid-19 ,in view of the Disaster management Act, 2005( hereinafter referred to as ‘DMA 2005’). Additional relief sought by the Writ Petition 554 of 2021 is to direct the respondents to issue any official document stating cause of death to the family of the deceased. Writ Petition (Civil) No. 539 of 2021 sought the issue of an appropriate writ of mandamus against the respondent - Union of India and others to provide social security and rehabilitation to victims of Covid-19.

Shri S.B. Upadhyay, learned Senior Advocate appearing on behalf of the petitioner, submitted that vide letter dated 14.03.2020, Ministry of Home Affairs, the Union of India has stated that the Central Government has decided to treat it as “Notified Disaster” for the purpose of providing assistance under State Disaster Response Fund (SDRF). As per the letter, for any death caused due to disaster an amount of Rs. 4 lakhs is to be paid to victim’s family, in addition to other reliefs. Relying upon the decision of this Court in Swaraj Abhiyan v. Union of India, (2016) 7 SCC 498, it was submitted that a plea of financial inability cannot be an excuse for disregarding statutory duties. The Counsel further submitted that it is necessary to issue appropriate death certificates stating the cause of death arising out of Covid-19 to benefit from any schemes declared by the respondent.

Shri Gaurav Kumar Bansal, Advocate appeared as Party in Person, submitted that once Covid-19 is declared as a “Notified Disaster/Disaster” and even otherwise as per Section 2(d) of the DMA 2005, Covid-19 Pandemic is a “Disaster” and therefore all the provisions including Section 12 of the DMA 2005 shall be applicable and come into play. It was submitted that granting ex gratia for one disaster (like earthquake, floods, cyclones etc.) while denying the same to other disaster (like Covid19) would not only create unfairness and discrimination but also cause undue hardship on those families who have lost their loved ones due to Covid-19 virus.

While opposing the present petitions, Shri Tushar Mehta, submitted that opposition does not dispute that Covid-19 is a notified disaster, nor is the Union Government facing Financial constraint. It was submitted that the Central Government under DMA 2005 has taken steps wherein a much more comprehensive, multi-pronged, multi-sectoral, whole of society and whole of government and dynamic approach has been adopted, in tune with the evolving nature of Covid-19 virus. Contrasting the Covid-19 pandemic from natural disasters, he stated that it was advisable not to formulate a strait jacket guideline to enable the authorities to deal with ever changing situations. Covid-19 has been an economic disruption and packages consisting lakhs of crores have been announced through e Pradhan Mantri Garib Kalyan Yojana and the Prime Minister Atma Nirbhar Swastha Bharat Yojana;mthe Government has taken all the steps to scale up the production, supplies, and import of vaccines .

It was submitted that the broad guidelines for appropriate recording of Covid-19 related deaths in India were prepared by the Indian Council of Medical Research and were issued on 10.05.2020 for all States for implementation and subsequently placed on the ICMR website, non compliance would attract stipulations under Sec188 of the IPC. The Solicitor general vehemently submitted that while interpreting Section 12 of the DMA 2005, the term “shall” must be cohered as “may”, thereby making the provision directory/discretionary and not mandatory, in the light of peculiar facts and comprehensive steps taken by the Union of India.

The Court addressing the ex gratia payment to the victim’s families, stated:

We direct the National Disaster Management Authority to recommend guidelines for ex gratia assistance on account of loss of life to the family members of the persons who died due to Covid-19, as mandated under Section 12(iii) of DMA 2005 for the minimum standards of relief to be provided to the persons affected by disaster – Covid 19 Pandemic, over and above the guidelines already recommended for the minimum standards of relief to be provided to persons affected by Covid-19. However, what reasonable amount to be offered towards ex gratia assistance is left to the wisdom of National Authority which may consider determining the amount taking into consideration the observations made hereinabove, such as, requirement/availability of the fund under the NDRF/SDRF for other reliefs and the priorities determined by the National Authority/Union Government and the fund required for other minimum standards of relief and fund required for prevention, preparedness, mitigation and recovery and other reliefs to carry out the obligation under DMA 2005. The aforesaid exercise and appropriate guidelines be recommended, as directed hereinabove, within a period of six weeks from today. (Para16 (1))

For issuance of appropriate death certificate, the Court held:

The Appropriate Authority is directed to issue simplified guidelines for issuance of Death Certificates/official documents stating the exact cause of death, i.e., “Death due to Covid-19”, to the family members of the deceased who died due to Covid-19. While issuing such guidelines, the observations made hereinabove in paragraph 13 be borne in mind. (Para 16 (2))

All pending interlocutory applications stood disposed. The Court directed the Union of India to take appropriate steps on the recommendations made by the Finance Commission in its XVth Finance Commission Report bearing in mind paragraph 8.131 in consultation with other stakeholders and experts.

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WITH Gaurav Kumar Bansal v. Union of India and others

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