Supreme Court pulls up government on COVID-19 ex gratia

A view of the Supreme Court of India. File   | Photo Credit: S. Subramanium

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 to perform its duty” to recommend ex gratia assistance for families of those who lost their loved ones to the COVID-19 pandemic.

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“The National Authority [NDMA] failed to perform its duty,” the Supreme Court held.

A Bench led by Justice Ashok Bhushan gave the NDMA six weeks to frame the guidelines for fixing the ex gratia meant for these families. The court, however, left it to the “wisdom” of the NDMA to fix the amount of ex gratia. The PIL petitioners, advocate Gaurav Kumar Bansal and Reepak Kansal, had asked for a payment of ₹4 lakh each to the families of the COVID-19 dead.

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“Not proper for the court to ask government to pay a particular amount,” the court said.

The judgment, pronounced by Justice M.R. Shah on the Bench, held that the government could not excuse itself of its duty to pay ex gratia by saying that such payments would entail huge expenditure.

The court pointed to Section 12 of the Disaster Management Act of 2005 and said the term ‘minimum standards of relief’ mentioned in the provision included payment of ex gratia.

Justice Shah dismissed Solicitor General Tushar Mehta’s submission that Section 12 was merely “recommendatory” and not mandatory. Instead, the court drew the government’s attention to the word “shall” used in Section 12 and said this made the payment of ex gratia to victims’ families a “mandatory and statutory duty”.

The court, in this regard, said Section 12 (iii) held that “the National Authority shall recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster, which shall include ex gratia assistance on account of loss of life…”

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 those affected by COVID-19, the court ordered the Union of India to take “appropriate steps” in compliance with the 15th Finance Commission Report.

In its last hearing on July 21, before reserving the case for judgment, the Supreme Court had asked the government whether it had taken a positive “decision” to not pay ex gratia to the families of those who died of the virus.

“Is there any decision taken that there is no need to pay ex gratia? Is there a decision or is it a case of ‘no decision’ ?” Justice Bhushan had asked Mr. Mehta.

“Where is the decision that there is no need for ex gratia?” Justice Shah had also enquired.

Justice Shah even asked whether the government, by maintaining that COVID-19 was not a “one-time disaster”, inferring that the Disaster Management Act would not apply to the pandemic.

The questions from the Bench had come even as the Centre clarified that it had money for ex gratia aid, but the focus now was on utilising funds for food, medical care, oxygen, vaccination and to pump up the economy.

“But if they do have the money, why should they not comply with their statutory obligation under Section 12 of the Disaster Management Act to provide ex gratia assistance to COVID victims?” senior advocate S.B. Upadhyay, for the petitioners, had demanded.

The government had itself declared COVID-19 a national disaster, he had submitted.

The petitioners had also highlighted a 2015 notification which required the government to pay an ex gratia of ₹4 lakh each to victims’ families under Section 12. The Centre could not cite financial constraints to elude its statutory duty to pay compensation now, Mr. Upadhyay had contended.

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Printable version | Sep 26, 2021 1:08:43 AM |

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