Supreme Court Directs Guidelines for Ex Gratia Assistance for COVID-19 Deaths: Reepak Kansal vs. Union of India (30 June 2021)

Introduction

Date of the Judgment: 30 June 2021
Citation: (2021) INSC 430
Judges: Ashok Bhushan, J., M.R. Shah, J. (authored the judgment)

Is the government legally bound to provide financial assistance to families who lost loved ones to COVID-19? The Supreme Court of India recently tackled this critical question in a public interest litigation. The core issue revolved around whether the National Disaster Management Authority (NDMA) is obligated to provide ex gratia compensation to the families of those who died due to COVID-19, given that COVID-19 was declared a “Notified Disaster” under the Disaster Management Act, 2005. The bench, comprising Justices Ashok Bhushan and M.R. Shah, delivered the judgment, with Justice M.R. Shah authoring the opinion.

Case Background

The writ petitions were filed as Public Interest Litigations (PILs) seeking directions to the Central and State Governments to provide ex gratia monetary compensation of ₹4 lakhs to the families of those who died due to COVID-19. The petitioners argued that this compensation was mandated under Section 12 of the Disaster Management Act, 2005 (DMA 2005), since COVID-19 had been declared a “Notified Disaster.” The petitioners also sought directions for the State Governments to fulfill their obligations to care for the victims of the pandemic and their families. Additionally, one of the petitions requested the issuance of official death certificates stating COVID-19 as the cause of death, and another sought social security and rehabilitation for COVID-19 victims.

Timeline

Legal Framework

The primary legal framework for this case is the Disaster Management Act, 2005 (DMA 2005). Key provisions include:

• Section 2(d) of the DMA 2005: Defines “disaster” as a catastrophe, mishap, calamity, or grave occurrence arising from natural or man-made causes, resulting in substantial loss of life or human suffering.
• Section 12 of the DMA 2005: Mandates the National Authority to recommend guidelines for minimum standards of relief for persons affected by a disaster, which “shall” include:
  • Minimum requirements in relief camps.
  • Special provisions for widows and orphans.
  • Ex gratia assistance for loss of life, damage to houses, and restoration of livelihood.
• Section 46 of the DMA 2005: Provides for the establishment of the National Disaster Response Fund (NDRF) to meet expenses for emergency response, relief, and rehabilitation.

The court also considered the constitutional obligations under Article 21, which guarantees the right to life, and the implications of these obligations on the provision of relief during a disaster. The court also considered the Concurrent List of Schedule VII of the Constitution of India, which deals with social security and social insurance.

Arguments

Petitioners’ Arguments:

• Mandatory Ex Gratia: The petitioners argued that Section 12 of the DMA 2005 mandates the National Authority to provide guidelines that include ex gratia assistance for loss of life in a disaster. They emphasized that the word “shall” in Section 12 should be interpreted as mandatory, not discretionary.

• COVID-19 as a Disaster: They contended that COVID-19 is a “Notified Disaster” and falls under the definition of “disaster” in Section 2(d) of the DMA 2005. Therefore, all provisions of the Act, including Section 12, should apply.

• Constitutional Obligation: The petitioners asserted that providing ex gratia assistance is not only a statutory duty but also a constitutional obligation under Article 21 of the Constitution, which guarantees the right to life.

• Financial Inability: They argued that financial constraints cannot be an excuse for not fulfilling statutory and constitutional duties. They cited previous judgments stating that the state cannot deprive citizens of their rights due to a lack of funds.

• Uniform Compensation: The petitioners highlighted that different states were paying different amounts as ex gratia compensation, leading to unfairness and discrimination. They advocated for a uniform national policy on compensation.

• Accurate Death Certificates: The petitioners stressed the need for accurate death certificates stating COVID-19 as the cause of death to ensure families receive benefits and to provide a true picture of the pandemic’s impact.

• Social Security: The petitioners argued that the DMA 2005 aims to provide social security and insurance to those affected by disasters, and denying ex gratia payment would defeat this purpose. They cited the loss of sole breadwinners and the devastation of families due to COVID-19.

Respondents’ (Union of India) Arguments:

• COVID-19 as a Unique Disaster: The Union of India argued that COVID-19 is a unique, ongoing disaster that requires a different approach from traditional disasters. They stated that the legislature did not envisage such a continuous disaster when enacting the DMA 2005.

• “Shall” as “May”: The respondents contended that the word “shall” in Section 12 should be interpreted as “may,” making the provision discretionary rather than mandatory. They argued that this interpretation is necessary due to the unique nature of the COVID-19 pandemic and the need for flexibility in resource allocation.

• Prioritization of Resources: The Union of India asserted that the issue is not financial inability but rather the need for the most rational and judicious use of resources. They highlighted the various steps taken to ramp up health infrastructure, testing, vaccination, and food security for vulnerable groups.

• Minimum Standards of Relief: The respondents argued that they have already provided minimum standards of relief through various measures, including enhanced health infrastructure, food security, and insurance for health workers. They stated that these measures fulfill the requirements of Section 12 of the DMA 2005.

• Finance Commission Recommendations: The Union of India relied on the XVth Finance Commission’s report, which did not recommend ex gratia payment for COVID-19 deaths from the SDRF/NDRF. They highlighted the Commission’s recommendations on insurance interventions, which are still under consideration.

• Death Certificate Guidelines: The respondents stated that they have issued guidelines for recording COVID-19 deaths and that any breach of these guidelines would be a criminal offense. They also stated that the registration of deaths is done under the Registration of Births and Deaths Act, 1969.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court framed the following key issues for consideration:

1. Whether the National Disaster Management Authority (NDMA) is obligated to provide ex gratia assistance to families of those who died due to COVID-19 under the Disaster Management Act, 2005.
2. Whether the word “shall” used in Section 12 of the Disaster Management Act, 2005, is to be read as mandatory or directory.
3. Whether a writ of mandamus can be issued directing the Central Government/National Authority/State Governments to pay a particular amount by way of ex gratia assistance, more particularly ₹4 lakhs, as prayed by the petitioners?
4. Whether the Court can/may direct to pay a particular amount by way of ex gratia assistance?
5. Whether the State Governments are obligated to issue an official document stating COVID-19 as the cause of death to the family members of the deceased.
6. Whether the State Governments are obligated to take care of the victims of the calamity and their family members.
7. Whether the Union of India is obligated to provide social security and rehabilitation to the victims of COVID-19.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• DLF Universal Limited v. Director, Town and Country Planning Department, Haryana (2010) 14 SCC 1* and *Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Limited, (2005) 7 SCC 234*: These cases were cited to support the interpretation of “shall” as mandatory, and the court agreed with this interpretation.
• Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111*: This case was used to support the principle that when the language of a provision is plain and unambiguous, it should be construed according to its plain meaning. The court followed this principle.
• Swaraj Abhiyan v. Union of India, (2016) 7 SCC 498*, *Municipal Council, Ratlam v. Vardichan, (1980) 4 SCC 162*, and *Khatri (2) v. State of Bihar, (1981) 1 SCC 627*: These cases were cited to emphasize that financial inability cannot be an excuse for not fulfilling statutory duties. The court agreed with this principle.
• Charan Lal Sahu v. Union of India, (1990) 1 SCC 613* and *Samatha v. State of A.P., (1997) 8 SCC 191*: These cases were cited to emphasize the government’s duty to protect vulnerable populations. The court acknowledged this duty.
• Bachahan Devi v. Nagar Nigam, Gorakhpur, (2008) 12 SCC 372*: This case was cited to support the interpretation of “may” and “shall”. The court distinguished the case and held that “shall” in Section 12 is mandatory.
• Small Scale Industrial Manufacturers Association (Regd.) v. Union of India and others, 2021 (4) SCALE 415*: This case was used to emphasize the limited scope of judicial review in economic policy matters. The court followed this principle and did not interfere with the government’s priorities.
• R.K. Garg v. Union of India (1981) 4 SCC 675*, *Arun Kumar Agrawal v. Union of India (2013) 7 SCC 1*, *State of M.P. v. Nandlal Jaiswal (1986) 4 SCC 566*, *BALCO Employees’ Union (Regd.) v. Union of India (2002) 2 SCC 333*, *Peerless General Finance and Investment Co. Ltd. v. RBI, (1992) 2 SCC 343*, *Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664*, *Prag Ice & Oil Mills v. Union of India, AIR 1978 SC 1296*, and *P.T.R Exports (Madras) P. Ltd. v. Union of India, (1996) 5 SCC 268*: These cases were cited to emphasize the limited role of courts in economic policy matters. The court followed these principles and did not interfere with the government’s priorities.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by several key factors:

• Statutory Duty: The court emphasized the mandatory nature of Section 12 of the DMA 2005, which requires the National Authority to recommend guidelines for minimum standards of relief, including ex gratia assistance for loss of life.
• COVID-19 as a Disaster: The court recognized that COVID-19 is a disaster within the meaning of the DMA 2005 and that the provisions of the Act should apply to it.
• Constitutional Obligations: The court acknowledged the constitutional obligation to protect the right to life under Article 21, which necessitates providing relief during a disaster.
• Limited Judicial Review: The court also recognized the limitations on judicial review in matters of economic policy and did not interfere with the government’s priorities in resource allocation.
• Need for Uniformity: The court highlighted the need for a uniform policy on ex gratia assistance to avoid discriminatory treatment among states.
• Practical Considerations: The court considered the practical challenges of the COVID-19 pandemic and the need for flexibility in resource allocation while also ensuring that the statutory duty to provide ex-gratia is fulfilled.

Sentiment Analysis:

The court’s sentiment can be characterized as a balance between enforcing statutory obligations and respecting the executive’s policy decisions. While the court firmly mandated the NDMA’s duty to issue guidelines for ex-gratia assistance, it also refrained from dictating a specific amount, acknowledging the government’s prerogative in economic matters. The tone of the judgment is firm yet pragmatic, emphasizing the need for a balanced approach in disaster management.

Directions Issued by the Court

The Supreme Court issued the following directions:

1. NDMA Obligation: The National Disaster Management Authority (NDMA) is directed to recommend guidelines for ex gratia assistance for families of those who died due to COVID-19, as mandated by Section 12 of the Disaster Management Act, 2005.
2. No Specific Amount: The court did not direct the payment of a specific amount (e.g., ₹4 lakhs) as ex gratia assistance. The government is to decide on the quantum of assistance, keeping in mind the financial constraints and the need for prioritization.
3. Death Certificates: The State Governments are directed to issue simplified guidelines for the issuance of death certificates stating COVID-19 as the cause of death. The court emphasized the need for accurate death certificates for families to receive benefits and for public health data.
4. Social Security: The Union Government is directed to consider the recommendations of the XVth Finance Commission regarding social security and insurance for COVID-19 victims.
5. Compliance: The court directed that the above directions must be complied with within a period of six weeks from the date of the judgment.

Ratio Decidendi

The ratio decidendi of the case can be summarized as follows:

• Mandatory Nature of Section 12: The word “shall” in Section 12 of the Disaster Management Act, 2005, is to be interpreted as mandatory, obligating the National Authority to recommend guidelines for minimum standards of relief, including ex gratia assistance for loss of life in a disaster.
• COVID-19 as a Disaster: COVID-19 falls within the definition of “disaster” under the Disaster Management Act, 2005, thus triggering the application of its provisions, including Section 12.
• Balance between Statutory Duty and Policy: While the court emphasized the statutory duty to provide ex gratia assistance, it also acknowledged the government’s prerogative in matters of economic policy and refrained from dictating a specific amount for compensation.
• Constitutional Obligation: The court recognized the constitutional obligation under Article 21 to protect the right to life, which requires providing relief during a disaster.
• Need for Accurate Death Certificates: The court stressed the importance of accurate death certificates stating COVID-19 as the cause of death, which are essential for families to receive benefits and for public health data.

Impact of the Judgment

The judgment has significant implications:

• Legal Precedent: It establishes a legal precedent that the National Disaster Management Authority (NDMA) is obligated to recommend guidelines for ex gratia assistance for loss of life in a disaster, making the provision mandatory.
• Disaster Management: It reinforces the importance of the Disaster Management Act, 2005, in providing relief to victims of disasters and clarifies the obligations of the National Authority.
• Rights of Citizens: It upholds the rights of citizens affected by disasters, ensuring that they receive minimum standards of relief, including ex gratia assistance.
• Uniformity in Compensation: It paves the way for a uniform national policy on ex gratia assistance, avoiding discrimination among states.
• Accurate Data: It ensures the issuance of accurate death certificates, which are crucial for public health data and for families to access benefits.
• Government Accountability: It holds the government accountable for fulfilling its statutory and constitutional obligations during a disaster.
• Future Disaster Preparedness: It highlights the need for better preparedness and a clear framework for providing relief during disasters, emphasizing the need for a proactive approach in disaster management.

Ratio of Deaths to Compensation

The Supreme Court’s judgment aimed to bring uniformity in compensation for COVID-19 deaths. However, before the implementation of the national policy, there were disparities in the compensation amounts across different states. The table below illustrates a hypothetical ratio of deaths to compensation amount, to demonstrate the variance that existed before the court’s intervention. Please note that these are hypothetical figures for illustrative purposes.

Conclusion

The Supreme Court’s judgment in Reepak Kansal vs. Union of India is a landmark decision in disaster management law. It clarifies the obligations of the National Disaster Management Authority (NDMA) under the Disaster Management Act, 2005, particularly regarding the provision of ex gratia assistance for loss of life during a disaster. The court’s ruling that the word “shall” in Section 12 of the Act is mandatory establishes a clear legal precedent, ensuring that the government cannot evade its statutory duties during a disaster. While the court did not direct a specific amount for compensation, it mandated the NDMA to issue guidelines, paving the way for a uniform national policy. The judgment also underscores the importance of accurate death certificates and the need for a proactive and balanced approach in disaster management. This case serves as a reminder of the government’s accountability and the judiciary’s role in upholding the rights of citizens, particularly during times of crisis.