Must give ex-gratia to Covid-19 victims, says Supreme Court
The Supreme Court on Wednesday directed the Union government to frame within six weeks uniform guidelines on ex-gratia payments to the families of those who have died of Covid-19, noting that the Prime Minister-headed National Disaster Management Authority (NDMA) “failed to perform its statutory duty” by not envisaging a compensation scheme.
The bench of justices Ashok Bhushan and MR Shah, however, clarified that the amount of ex-gratia cannot be fixed by the court, and that the Centre and NDMA should determine the quantum after taking into account their policies and other relief and mitigation measures already put in place.
At present, there is no scheme for payment of ex gratia for Covid-19 deaths due to absence of such provision under the “minimum standards of relief”, declared by NDMA for the pandemic. State governments have also been asked by the Centre not to use the disaster relief funds in case they wish to pay compensation to the next of kin of those who died of Covid-19. Some states, such as Bihar, Karnataka and Delhi, have been paying compensation on account of Covid-19 deaths from their chief minister relief funds.
Allowing public interest litigations by advocates Gaurav Kumar Bansal and Reepak Kansal, the bench on Wednesday held that it was a legal duty cast upon NDMA to issue uniform guidelines on ex gratia payment also because it would “avoid any heartburning and discriminatory treatment” for victims residing in different states.
“We direct NDMA 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 Disaster Management Act (DMA), 2005 for the minimum standards of relief to be provided to the persons affected by disaster, over and above the guidelines already recommended,” ordered the bench.
In April 2015, the Union government issued the norms of assistance from disaster relief funds, stipulating ₹4 lakh in ex-gratia to the families of deceased persons.
In March last year, when the Centre issued revised norms for relief in the wake of Covid-19, it initially announced that ₹4 lakh ex-gratia to the families of those who died of the disease but withdrew this decision hours later.
The court rejected the Centre’s contention that it was not bound to provide for ex-gratia payments since Covid-19 was different from “natural disasters” such as floods and earthquakes, and therefore, the Disaster Management Act will have to be interpreted as a scheme under which ex-gratia was only recommendatory and not mandatory. The Union government’s affidavit also stated that the ex-gratia amount of ₹4 lakh cannot be paid for Covid-19 deaths as it is beyond fiscal affordability, and the finances of central and state governments are under severe strain.
Finding no favour with these submissions, the bench underlined that Section 12 of the DMA has used the word “shall” twice in propounding that the guidelines have to be made “ex-gratia assistance on account of loss of life” as well as for damage to houses and for restoration of means of livelihood.
“Therefore, it is the statutory duty cast upon the national authority to recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster, which shall include the reliefs, as stated hereinabove. The language used in the provision is very plain and unambiguous,” held the bench while shooting down the Centre’s plea that the word “shall” in the provision should be read as “may”.
Emphasising that the beneficial provision of the legislation must be literally construed so as to fulfil the statutory purpose, and not to frustrate it, the bench noted that once Covid-19 had been notified as a “disaster”, it was mandatory to contemplate a scheme for ex-gratia for loss of life due to the infection.
“Not recommending any guidelines for ex-gratia assistance on account of loss of life due to Covid-19 pandemic, while recommending other guidelines for the minimum standards of relief, it can be said that the national authority has failed to perform its statutory duty under Section 12 and therefore a writ of mandamus is to be issued to the national authority to recommend appropriate guidelines for ex gratia assistance,” maintained the bench.
So far, 399,507 people in the country have succumbed to the disease, according to data compiled by HT.
BJP spokesperson Gopal Agarwal said the government has introduced several schemes as part of Covid relief. “We have so many schemes already like education for the children who lost their parents, compensation scheme for deceased health care workers’ families and a scheme for families that lost their earning members to Covid,” Agarwal said. The bench also took cognisance that there was no document on record to show that after a recommendation of the Finance Commission against a scheme for ex-gratia, there was any decision made by the PM-led NDMA, which was statutorily mandated to issue these guidelines.
“Ex-gratia assistance on account of loss of life is part of minimum standards of relief, which must be considered by the National Authority while providing for the minimum standards of relief to be provided to the persons affected by disaster – in the present case, Covid-19 pandemic,” said the court.
At the same time, the bench highlighted that the courts must draw a line when it comes to matters of financial implications, and that it was cognisant of the fact that Covid-19 is different from the other disasters/natural disasters for which ex-gratia assistance is provided.
No state or country has unlimited resources, highlighted the bench as it pointed out that the central government was also required to take various measures in different sectors, like public health, employment, providing food and shelter to the common people and migrants, transportation to migrants, effect of the pandemic on the economy, and so on.
“There shall not be any justification to provide for the same amount by way of ex-gratia assistance as provided in the case of other disasters/natural disaster, i.e., ₹4 lakhs. The government has to decide its own priorities and reliefs to the different sectors for different reliefs...What reasonable amount to be offered towards ex gratia assistance is left to the wisdom of the national authority,” said the court, directing NDMA to issue appropriate guidelines within six weeks.
The Opposition Congress said that a government that can’t compensate families of the victims does not “have a right to rule the nation”. “Not only ₹4 lakh but ₹10 lakh rupees should be given to families of those who have lost a member to Covid,” added Congress spokesperson Gaurav Vallabh.