Ex-gratia for Covid deaths: SC raps NDMA

Krishnadas Rajagopal New Delhi | Updated on June 30, 2021

Says authority has failed in its statutory duty; gives 6 weeks to frame guidelines

The Supreme Court, on Wednesday, pulled up the National Disaster Management Authority (NDMA), of which the Prime Minister is the ex officio chairperson, for failing in its duty to recommend ex gratia assistance for families of those who lost their loved ones to the Covid-19 pandemic.

“The National Authority [NDMA] failed to perform its statutory duty… Ex gratia assistance on account of loss of life is part of minimum standards of relief, which has to be provided to persons affected by disaster – in the present case, the Covid-19 pandemic,” the Supreme Court observed in a 66-page judgment.

A Bench of Justices comprising Ashok Bhushan, Vineet Saran and MR Shah gave the NDMA six weeks to frame uniform guidelines for fixing the ex gratia meant for these families.

The NDMA’s guidelines, however, would not stop individual States from separately providing ex gratia assistance to the families from their own funds.

The court, however, left it to the wisdom of the NDMA to fix the amount of ex gratia while considering the recommendations in the 15th Finance Commission Report and funds required for other reliefs and priorities, including Covid preparedness, mitigation, prevention and recovery.

The court refused the plea made by PIL petitioners, advocate Gaurav Kumar Bansal and Reepak Kansal, to order an ex gratia of ₹4 lakh each to the families.

Economic issues

Justice Shah, who authored the verdict, said judges should be wary while delving into economic and fiscal regulatory issues, but in this case, the Supreme Court was “absolutely justified” to intervene as the NDMA failed in its duty.

“Nothing is on record that any guidelines/decision has been taken by the National Authority recommending guidelines for the minimum standards of relief in the form of ex gratia assistance on account of loss of life of a person who has died due to Covid-19… the beneficial intent of the legislation [Disaster Management Act] cannot be frustrated,” the judgment highlighted.

The court was unimpressed by the government’s argument that Covid was a continuous disaster whose trajectory cannot be predicted. Solicitor General Tushar Mehta had contended that a one-time monetary compensation to victims would not help now. Besides, funds need to be channelled into public health, vaccination, treatment, food, economy.

‘Govt cannot refuse to pay’

“State may have its financial constraint and its priorities in expenditure, the law does not permit any government to deprive its citizens of Constitutional rights on a plea of poverty,” Judge Shah stated the position in law. The court said the government cannot simply refuse to pay ex gratia to victims once it has declared a phenomenon as a ‘disaster’.

The Ministry of Home Affairs had treated Covid as a ‘notified disaster’ in its letter on March 14, 2020. Guidelines and Standard Operating Procedures were issued for Covid-19 under the Disaster Management Act of 2005. Even the 15th Finance Commission’s Report mentions the Centre having always considered Covid as a disaster.

If Covid is indeed a ‘disaster’, as the government says, then Section 12 of the Disaster Management Act applies. Section 12 makes it mandatory for the NDMA to recommend guidelines for the “minimum standards of relief” to be provided to disaster victims. These include ex gratia assistance on account of loss of life.

The court dismissed the government’s contention that Section 12 was only recommendatory in nature. Instead, Justice Shah said the provision twice uses the term ‘shall’ while referring to ex gratia payments to disaster victims, which makes it ‘mandatory’ in nature.

“Once Covid-19 is declared as a ‘Notified Disaster/Disaster’, all the provisions, including Section 12 of the Disaster Management Act of 2005, shall be applicable and come into play,” Justice Shah observed.Death certificates

The court, meanwhile, directed that death certificates of Covid-19 patients should show the “exact cause of death”. As regards insurance and social security claims of the Covid-affected, the court ordered the Union of India to take appropriate steps in compliance with the 15th Finance Commission Report.

Published on June 30, 2021

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