REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 554 OF 2021
Reepak Kansal …Writ Petitioner
Versus
Union of India and others …Respondents
WITH
WRIT PETITION (CIVIL) NO. 539 OF 2021
Gaurav Kumar Bansal …Writ Petitioner
Versus
Union of India and others …Respondents
(With applications for interventions)
J U D G M E N T
M.R. SHAH, J.
1. The applications for interventions are allowed in terms of the prayer
made and the applicants are permitted to intervene in the present
proceedings.
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2. These two writ petitions have been filed in Public Interest seeking
directions to the respondents – Central/State Governments to provide ex
gratia monetary compensation of Rs. 4 lacs or notified ex gratia monetary
compensation to the families of the deceased who have succumbed to the
pandemic of Covid-19, in view of Section 12 of the Disaster Management
Act, 2005 (hereinafter referred to as ‘DMA 2005’). It is also further prayed
for an appropriate direction to the respondents – State Governments to fulfil
their obligation to take care of victims of the calamity and their family
members. One another relief which is sought in Writ Petition (Civil) No.
554 of 2021 is to issue an appropriate direction to the respondents – State
Governments to issue any official document stating cause of death, to the
family members of the deceased who died due to Covid-19. One additional
relief which is sought in Writ Petition (Civil) No. 539 of 2021 is to issue an
appropriate writ of mandamus against the respondents – Union of India and
others to provide social security and rehabilitation to the victims of Covid19. Two applications have been filed in the aforesaid writ petitions by
intervenors – family members who have lost their family members due to
Covid-19, supporting the prayers sought in the respective writ petitions.
3. Shri S.B. Upadhyay, learned Senior Advocate has appeared on behalf
of the petitioner in Writ Petition (Civil) No. 554 of 2021. Shri Gaurav
Kumar Bansal, learned Advocate has appeared as Party in Person in Writ
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Petition (Civil) No. 539 of 2021. Shri Sumeer Sodhi and Shri Anand S.
Jondhale, learned Advocates have appeared on behalf of the intervenors in
the respective intervention applications. Shri Tushar Mehta, learned
Solicitor General along with Shri K.M. Natraj and Ms. Aishwarya Bhati,
learned Additional Solicitor Generals have appeared on behalf of the Union
of India.
3.1 Shri S.B. Upadhyay, learned Senior Advocate appearing on behalf of
the petitioner in Writ Petition (Civil) No. 554 of 2021 has submitted that
admittedly Covid-19 is a “Notified Disaster” and therefore the provisions of
the DMA 2005 shall apply. It is submitted that as such vide letter dated
14.03.2020, Ministry of Home Affairs, Union of India has stated that the
Central Government, keeping in view the spread of Covid-19 virus in India,
has decided to treat it as “Notified Disaster” for the purpose of providing
assistance under State Disaster Response Fund (SDRF). It is submitted that
earlier as per the letter/communication dated 8.4.2015, the Government of
India, Ministry of Home Affairs (Disaster Management Division) issued
revised list and norms of assistance from SDRF and National Disaster
Response Fund (NDRF). It is submitted that as per the said letter, for any
death which is caused due to disaster, an amount of Rs. 4 lacs is to be paid to
the victim’s family, in addition to other reliefs. It is submitted therefore on
the same line and applying the same criteria, the family members of those
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who have succumbed to Covid-19 are to be provided ex gratia monetary
compensation of Rs. 4 lacs, as Covid-19 is also treated, considered and
declared as “Notified Disaster”.
3.2 It is further submitted by Shri Upadhyay, learned Senior Advocate
appearing on behalf of the petitioner that Section 12 of the DMA 2005
mandatorily provides for the National Authority defined under Section 3 of
the said Act to recommend guidelines for the minimum standards of relief to
be provided to persons affected by the disaster and it shall include, inter alia,
ex gratia assistance on account of loss of life. It is submitted therefore that it
is the statutory duty of the National Authority to provide in the guidelines
for ex gratia assistance on account of loss of life who died due to Covid-19,
which is declared as a “Notified Disaster”.
3.3 It is submitted that to provide such ex gratia assistance on account of
loss of life is not only a statutory obligation under Section 12 of the DMA
2005, but it is the constitutional obligation also since it also affects the right
to life guaranteed under Article 21 of the Constitution of India. It is
submitted that the word “shall” occurring twice in Section 12 of the Act puts
a constitutional and statutory obligation on the part of the Central/State
Government to recommend guidelines for providing ex gratia assistance
which is in the nature of sustenance assistance. It is submitted that as such
keeping the aforesaid in mind, earlier for the years 2015-2020 vide Ministry
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of Home Affairs letter dated 08.04.2015 the Government has fixed norms of
assistance from SDRF and NDRF for providing succour to the aggrieved
family.
3.4 It is further submitted that the word “shall” occurred in Section 12 of
the DMA 2005 should be construed as “mandatory” and shall not be read as
“may”, as contended on behalf of the Union of India. It is submitted that if
the word “shall” used in Section 12 of the DMA 2005 is read as “may”, as
sought to be canvassed on behalf of the Union of India, the concept of
“situation interpretation” evolved would negate the very object and purpose
enshrined in Section 12 of the DMA 2005 since the purpose is immediate
sustenance assistance to the aggrieved family. Heavy reliance is placed on
the decision of this Court in the case of DLF Universal Limited v. Director,
Town and Country Planning Department, Haryana (2010) 14 SCC 1 (para
13) and Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Limited, (2005) 7
SCC 234 (para 85).
3.5 Relying upon the decision of this Court in the case of Bhavnagar
University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 (paras 25 &
26), it is submitted that when the language used in the section/provision is
plain and unambiguous, no words shall be added, altered or modified unless
it is plainly necessary to do so to prevent a provision from being
unintelligible, absurd, unreasonable, unworkable or totally irreconcilable
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with the rest of the statute. It is submitted that in the present case the
language used in Section 12 of the DMA 2005 is plain and unambiguous and
therefore the word “shall” shall be read as “shall” and the same should be
construed as mandatorily to be provided.
3.6 Relying upon the decision of this Court in the case of Swaraj Abhiyan
v. Union of India, (2016) 7 SCC 498 (paras 120 to 123), it is submitted that
as held by this Court, a plea of financial inability cannot be an excuse for
disregarding statutory duties. Reliance is also placed on the decisions of this
Court in the cases of Municipal Council, Ratlam v. Vardichan, (1980) 4 SCC
162; and Khatri (2) v. State of Bihar, (1981) 1 SCC 627 and it is submitted
that as observed the 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. It is submitted
therefore that the plea taken by the Central Government that the prayer of
the petitioner for the payment of ex gratia compensation for loss of life due
to Covid-19 pandemic to the aggrieved families is beyond the fiscal
affordability may not be accepted. It is submitted that the fiscal
affordability/financial constraint cannot be a ground not to fulfil statutory
obligation under the DMA 2005 and the constitutional obligation as
provided under Article 21 of the Constitution of India.
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3.7 It is further submitted by Shri Upadhyay, learned Senior Advocate
appearing on behalf of the petitioner that it is the duty of every government,
either Central or State, to see that the correct/accurate death
certificates/official documents are issued mentioning the correct cause of
death arising out of Covid-19 pandemic. It is submitted that by not issuing
the accurate/correct death certificate/official document with correct cause of
death – Covid-19 pandemic, the family members of the deceased, who died
due to Covid-19 pandemic, will be deprived of the benefits of the schemes,
if any, declared by the Central/State Governments. It is submitted that not
only that but by not issuing the correct/accurate death certificates
mentioning the correct cause of death – Covid-19 pandemic, even the other
citizens would be misled and the correct figure of deaths arising out of
Covid-19 would not be known. It is submitted that if the number of persons
who died because of Covid-19 are shown less, people would be misled and
many a times they would become negligent. It is submitted therefore that it
is in the larger public interest also to issue correct/accurate death certificate
with correct cause of death. It is submitted that there is a requirement of
simplifying the procedure for issuance of death certificate mentioning the
cause of death arising out of Covid-19.
4. While adopting the submissions made by Shri Upadhyay, learned
Senior Advocate, Shri Gaurav Kumar Bansal, learned Advocate who has
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appeared as Party in Person, in addition, has further submitted that in the
counter affidavit filed by the Union of India, one of the grounds to refuse to
pay ex gratia amount of compensation to those families whose members
have died due to Covid-19 is that Covid-19 is a continuous disaster which
was not envisaged by the Legislature at the time of enactment of DMA 2005
and therefore the provisions of DMA 2005 have to be implemented
differently. It is submitted that the submission on behalf of the Union of
India that term “disaster” which was envisaged while enacting DMA 2005,
there were broadly those disasters resulting from any catastrophe or calamity
which is one time happening or few incidents taking place periodically for
some time, hence considering the very nature of Covid-19, the Covid-19
disaster has to be treated differently from the term “Disaster” contemplated
by the Legislature, while enacting DMA 2005. To the aforesaid, it is
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.
4.1 It is submitted that even otherwise recently in the year 2019, the
Union of India has issued National Disaster Management Plan 2019 (NDMP
2019), wherein two types of Disasters are defined, i.e., (1) Natural Hazards,
and (2) Man Made Disasters. It is further submitted that NDMP-2019 has
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further classified its Natural Hazards and Biological Natural Hazards has
been included as “Disaster”. It is submitted that therefore Covid-19 being a
Biological Disaster comes within the purview and ambit of Section 2(d) of
the DMA 2005 and therefore is a “Disaster” under DMA 2005. It is
submitted that therefore to deny that Covid-19 is not a disaster has no
substance and may not be accepted as even the Central Government on
14.03.2020 decided to treat Covid-19 as “Notified Disaster”.
4.2 It is submitted that even the XVth Finance Commission’s Report
which is prepared after Covid-19 Pandemic suggests that the Central
Government has always considered Covid-19 as a “Disaster” as mentioned
in Section 2(d) of the DMA 2005. It is submitted therefore that the
submission on behalf of the Union of India that Covid-19 is not that kind of
disaster which Legislature envisaged while enacting DMA 2005 is nothing
but an afterthought.
4.3 Now so far as the stand taken on behalf of the Union of India that the
term “shall” used in Section 12 will have to be read as “may” while reading
the instances given in Section 12 (i) to (iii), it is submitted that the
Parliament has used the word “shall” twice in Section 12 of DMA 2005
which clearly shows that National Disaster Management Authority (NDMA)
is not only bound to recommend guidelines for the minimum standards of
relief but such reliefs must contain the provisions of ex gratia assistance on
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account of loss of life. It is submitted that further, use of word “shall” in
Section 12 of DMA 2005 clearly indicates the intention of the legislature
that the said provision is mandatory one and as such it is the statutory duty
of the Union Government/NDMA to issue guidelines providing ex gratia
compensation to the family members of persons who have died due to
Covid-19 virus while providing their services in relief operations or when
they were associated with preparedness activities to combat Covid-19
pandemic.
4.4 It is submitted that even the Union of India, Ministry of Home Affairs
vide its letter dated 8.4.2015 also issued the revised list of items of norms of
assistance from SDRF/NDRF wherein it is clearly mentioned that Rs. 4 lacs
shall be provided for ex gratia payment to the families of deceased persons.
It is submitted that therefore the word “shall” used by the legislature in
Section 12 must be given its literal meaning unless context requires
otherwise.
4.5 It is further submitted by Shri Gaurav Kumar Bansal, learned
Advocate that granting ex gratia for one disease while denying the same to
the persons suffering from other disease would create unfairness and
invidious discrimination and the same cannot be permitted, more
particularly when the Ministry of Home Affairs or the Central Government
have themselves notified Covid-19 as “Notified Disaster” under DMA 2005.
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It is 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.
4.6 Now so far as the submission on behalf of the Union of India pleading
fiscal affordability while making provisions for ex gratia to the families of
all Covid-19 deceased persons, it is submitted that as such there are some
States like States of Bihar, Karnataka, Delhi which are paying one time
compensation in the form of ex gratia to those families whose members have
died due to Covid-19 pandemic.
4.7 It is further submitted that item No. 23 of the Concurrent List of
Schedule VII of the Constitution of India deals with social security & social
insurance and it is on the basis of this item that Parliament enacted DMA
2005. It is submitted that one of the Foundation Stones of enacting DMA
2005 is to provide social security & social insurance to the persons and
families affected by disasters. It is submitted that therefore denying the ex
gratia payment to the families of Covid-19 deceased shall not only hit on the
foundation stone on which DMA 2005 is standing but shall also defeat the
whole purpose of DMA 2005. It is submitted that because of Covid-19
pandemic, lakhs of families have not only lost their near and dear but have
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also lost the sole bread earner who was nurturing the range of persons, i.e.,
small kids to elderly persons. It is submitted that due to loss of sole bread
earner, lakhs of families have completely devastated and destroyed. It is
submitted that grant of respectable and reasonable one-time compensation in
the form of ex gratia as provided under Section 12(iii) of DMA 2005 to the
“lowest of the low” to the “needy and to the families of frontline workers”
who lost their lives while acting as “Corona Warrior” shall not only provide
a sense of social security to them but shall also serve the letter and spirit of
DMA 2005.
4.8 It is submitted that even the Finance Commission in its XVth Finance
Commission’s Report at point number 8.132 & 8.133 has also suggested the
Government of India to launch National Insurance Scheme for Disaster
Related Deaths in India which will not only be able to work as Social
Protection Scheme but will also not increase the administrative burden on
the Government.
5. Shri Sumeer Sodhi, learned Advocate appearing on behalf of the
intervenors has submitted that it is the constitutional obligation of the
Government to take steps to ensure that the minimum facilities of life are
provided to every person, and there are equalities of income and material
resources as far as democratically possible. It is submitted that the preamble
of the Constitution of India declares India as a “Socialist” country and this
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term itself gives a substantial proof of the existence of social welfare
responsibilities of the government. It is submitted that Article 39A of the
Constitution of India lays down a duty on the government to frame its
policies in such a manner that the citizens get equal right to an adequate
means of livelihood. It is submitted that though no amount of money will be
enough to mitigate the loss of a family member but still the government as
its social responsibility shall frame a national scheme for providing
compensation to the families of those people who have died due to Covid-19
pandemic so that they all can live a dignified life and fulfil their basic
necessities.
5.1 Relying upon the decision of this Court in the case of Charan Lal
Sahu v. Union of India, (1990) 1 SCC 613 (popularly known as “Bhopal
Gas Leak Disaster case”, it is submitted that it is held in the aforesaid case
that the Government has the sovereign power of guardianship over the
persons under disability and it is its duty to protect them. Reliance is also
placed on the decision of this Court in the case of Samatha v. State of A.P.,
(1997) 8 SCC 191 (para 72).
5.2 It is further submitted by Shri Sodhi, learned Advocate appearing for
the intervenors that the Government cannot be permitted to abdicate from its
constitutional duty by claiming fiscal constraint or inability. It is submitted
that the submission of the Government that payment of ex gratia
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compensation to all deceased persons who have died due to Covid-19, is
beyond their fiscal affordability cannot be allowed as a ground for escape. It
is submitted that if the Government is allowed to claim fiscal inability as a
ground to get away from its constitutional duty, then it will set a dangerous
precedent and every time when the government will be in a tight spot, it may
legally defy duties under the laws by hiding behind the shield of fiscal
inability to protect itself from providing relief.
5.3 It is submitted that when Covid-19 virus rapidly started spreading in
our country, the Union of India proactively notified “Covid-19” as a
pandemic in order to exercise powers under DMA 2005 vide letter dated
14.03.2020. It is submitted that now when the responsibility of mitigating
the loss of life under DMA 2005 arises, the government is abstaining from
its responsibility and trying to escape from its duty to provide compensation
to people who have lost their loved ones. It is submitted that in the modified
list of items and norms of assistance from SDRF vide letter dated
14.03.2020, the Government of India has withdrawn the clause of ex gratia
compensation. It is submitted that Section 12 of DMA 2005 explicitly states
that the NDMA shall recommend guidelines for minimum standards of relief
to be provided to the persons affected by disaster. It is submitted that special
emphasis should be laid on Section 12 (ii) and Section 12(iii) of DMA 2005.
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5.4 It is further submitted that the said withdrawal has resulted in an
anomaly which has no justifiable reasoning. It is further submitted that there
must be a uniform policy on compensation. It is submitted that currently
different States are paying different amount of compensation to the families
of the deceased persons. It is submitted that the State of Bihar has
announced that it will provide Rs. 4 lacs compensation in case of Covid-19
death; State of Madhya Pradesh has announced that an amount of Rs. 1 lac
shall be provided and the Government of Delhi has recently announced that
the amount of compensation in case of Covid-19 death shall be Rs. 50,000/-.
It is submitted that such incongruity has crept in only because of the
wrongful and illegal act of withdrawal of monetary compensation by the
Central Government. It is submitted that there cannot be any discrimination
in benefits given to family members of those who have died due to Covid-19
pandemic.
6. While opposing the present petitions, Shri Tushar Mehta, learned
Solicitor General has submitted that it is not the case on behalf of the Union
of India that Covid-19 is not a “Notified Disaster/Disaster”. It is submitted
that it is also not in dispute that the provisions of DMA 2005 shall be
applicable with respect to Covid-19 pandemic. It is submitted that as such
various guidelines/SOPs are issued and the steps taken under the provisions
of DMA 2005. It is further submitted that even the Union government is also
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not facing financial constraint and/or pleading fiscal affordability. It is
submitted that the issue is not of fiscal affordability, but rather of the most
rational, judicious and optimum usage of fiscal and all other resources of the
nation. It is submitted that question is of priorities and not facing financial
constraint. It is submitted that it may not be misconstrued that the
Government is opposing grant of ex gratia payment due to financial
constraint.
6.1 It is submitted that as mentioned in the detailed and comprehensive
affidavit filed on behalf of the Union of India, important steps have been
taken by the Central Government under DMA 2005, as also, the steps taken
specifically as Nation’s response to Covid-19 pandemic wherein a much
more comprehensive, multi-pronged, multi-sectoral, whole of society and
whole of government, while at the same time dynamic approach has been
adopted, in tune with the evolving nature of Covid-19 virus.
6.2 It is submitted that various steps have been taken by the Union of
India, to strategize nation’s response to Covid-19, a once in a lifetime
pandemic inflicted on the entire world, wherein not just the funds of NDRF
and SDRF, but even from the Consolidated Fund of India are being utilised
as per the advice of the experts. It is submitted that specific steps have been
taken for ramping up the entire health infrastructure, preparedness, relief,
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restoration, mitigation and reconstruction, in a very short time, to include,
inter-alia:
a) Testing, tracing, treatment and quarantine facilities;
b) Augmenting hospital facilities, oxygenated beds, ventilators, ICU
facilities etc.;
c) Augmentation of health workforce and their insurance;
d) Augmentation, allocation, supply and transportation of oxygen and
other essential drugs;
e) Research, development, enhanced production and administration of
vaccinations to rapidly cover one of world’s largest eligible population of
beneficiaries;
f) Ensuring food security to the vulnerable groups;
g) Minimising the adverse impact of large-scale economic disruptions by
multi-pronged approach; and
h) Rehabilitation, protection and education of children orphaned due to
Covid-19.
6.3 It is submitted that different disasters have different effects/impacts.
It is submitted that considering the very nature of Covid-19 pandemic and its
effects/impacts, the guidelines/reliefs provided/to be provided have to be
different from the disasters contemplated by the legislature while enacting
DMA 2005. It is submitted that in the “disaster” originally contemplated, is
a one-time occurrence or the same occurs repeatedly for few times like
floods, earthquake, cyclone, different kinds of “interim measures of relief”
are to be provided, as generally it is not difficult to deal with such disasters
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which do not require day-to-day expenditure, day-to-day monitoring, day-today change in priorities and day-to-day change in the methods and
modalities to deal with the same. It is submitted that it is this difference
which is relevant while deciding the scope and ambit of Section 12 of DMA
2005, in the present context.
6.4 It is submitted that it is always desirable that any disaster of the nature
of earthquake, flood, cyclone etc., an ex-gratia payment to every deceased is
stipulated in the form of guidelines contemplated under Section 12.
However, when the disaster not only remains an on-going disaster but
requires governmental expenditure, spending from public exchequer,
monitoring the disaster on a daily basis and treating the persons with the
best, everchanging and modern facilities available, the concepts of
“Minimum Standards of Relief”, under Section 12 will differ. In a scenario
like an on-going pandemic, the Central Government will have to provide for
a different “Minimum Standards of Relief” keeping the population suffering
from the disaster in mind, broadening its own vision, providing for a multithronged approach and putting life, health and safety of the citizens at the
topmost priority, for which expenditure is needed on a daily basis.
6.5 It is submitted that the Central Government, by way of “Minimum
Standards of Relief” under Section 12, has already taken several steps
providing for substantial and speedy measures by way of increase in the
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health, infrastructure, ensuring food safety to every citizen (as the present
disaster required several lockdowns resulting in loss of earning), insurance
cover to those who were dealing with the pandemic by directly remaining
near to Covid infected patients etc.
6.6 It is submitted that Covid-19 has come as a novel virus and disease
resulting in a pandemic for the entire world. The entire world has faced this
phenomenon with differing intensity, mutations and waves, impacting life
itself, healthcare systems, livelihood, access to amenities, liberties etc.,
making it a global public health challenge affecting all countries. It is
submitted that therefore the Central Government adopted a multi-pronged,
multi-sectoral, whole of society and a whole of government approach, along
with the National Plan, in order to tailor the response of the nation in tune
with the evolving nature of the virus. It is submitted that the Government of
India while implementing DMA 2005 has applied a different approach
keeping the unprecedented nature of disaster in mind, while supporting
individual States/UTs as per their specific needs. It is submitted that such
support for fighting the pandemic situation has consisted of ramping up the
health infrastructure in a short time, which include testing, treatment, and
quarantine facilities on large-scale on the one hand, and augmenting hospital
facilities, which include oxygenated beds, ventilators, and ICU facilities, on
the other, in which the fund of not only NDRF but even from the
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Consolidated Fund of India is being spent. It is submitted that this is an ongoing effort, which will have to be and is being scaled up further in response
to successive waves of Covid-19. It is submitted that there is a large-scale
increase in the health structure during the course of the pandemic as under:
TYPE OF HEALTH
FACILITIES
BASELINE CURRENT
STATUS
NO OF
FOLD
INCREASE
Cat I. COVID dedicated
hospitals
163 4096 25-fold
increase
Cat II. Dedicated
COVID Health Center
0 7,929
Cat III. Dedicated
COVID Care Centre
0 9,954
Oxygen supported beds 50,583 3,81,758 7.5-fold
increase
Total isolation beds
(excluding ICU beds)
41,000 17,17,227 42-fold
increase
Total ICU beds 2,500 1,13,035 45-fold
increase
Isolation railway
coaches
0 5,601
AUGMENTATION OF HEALTH WORKFORCE
More than 150,000 health personnel engaged (7,024 MOs, 3,680
Specialists, 35,996 Staff Nurses, 18,649 NHWs, 1,01,155 community
volunteers, Accredited Social Health Activist (ASHA)’s and ASHA
Facilitators, 48453 other support staffs).
INSURANCE COVERAGE FOR HEALTH WORKERS
Insurance coverage to 22.12 lakhs health workers including ASHAs
fighting COVID-19.
INCREASE IN TESTING CAPACITY
2,621 testing labs (1,266 Government and 1,355 Private)
Phenomenal increase in testing capacity: 30,000 tests/day in
April’20 increased to a high of 22 lakhs tests/day.
Cumulative – over 36.1 crore tests conducted for COVID-19.
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INCREASE IN SURVEILLANCE
Screening at all port of entry/exit, State/District rapid response
teams.
Contact tracing through extensive network of frontline health
workers.
State/city-specific sero-surveillance studies to estimate and monitor
trends.
6.7 It is submitted that the due to the peculiar nature of the COVID-19
pandemic, it was advisable not to formulate a strait jacket guideline and a
cast in stone formula on “Minimum Standards of Relief". It is submitted that
in order to enable the authorities to deal with the ever changing situations in
the best possible manner, utilising all the financial, human, infrastructural
and all resources of the nation rationally, judiciously and keeping the future
contingencies in mind, as the world does not know how this pandemic will
take shape in the future, the Union of India has taken a conscious policy
decision to provide relief(s) depending upon the ever changing needs
through various Ministries/Departments and such actions are coordinated
and monitored by the National Executive Committee, as contemplated in the
Disaster Management Act, 2005 in general and under Section 10 in
particular.
It is submitted that the following measures have been taken by the
Union of India/NDMA:
(1)The regular funding to deal with COVID-19 has been provided under
the National Health Mission;
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(2) In order to supplement the efforts of the State Governments, the
Central Government on 14th March 2020, by way of a special onetime dispensation, decided to treat COVID-19 as a “notified disaster”
for the purpose of providing limited assistance towards containment
measures under SDRF,
(i) Measures for quarantine for sample collection and screening
(ii) Procurement of essential equipments/ labs for response to
COVID-19.
(iii) To deal with problems of migrant labourers, on 28th March,
2020, the Central Government allowed use of SDRF for setting
up relief camps and to provide food, water, etc. to migrant
workers and other stranded people.
(iv) On 23rd September, 2020, the Central Government further
allowed use of SDRF by the States for oxygen generation for
COVID-19 patients in States, to strengthen transport services
for transporting oxygen, and setting up containment zones,
COVID-19 care centres.
(v) for the containment measures allowed under SDRF, State
Governments were allowed to spend up to a maximum of 35%
of the annual allocation of funds under SDRF for the financial
year 2019-20. The ceiling of 35% was further enhanced to 50%
during the financial years 2020-21.
(vi) The State Governments were allowed to utilize up-to 10% of
their opening balance of SDRF as on 01.04.2020 by way of
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one-time special dispensation, for COVID-19 containment
measures during 2020-21.
(vii) Keeping in view the recent surge in COVID-19 cases in the
country, by way of a special dispensation, Central Government,
further extended the dispensation allowed to States to utilise up
to 50% of their annual allocation of SDRF, for containment
measure of COVID-19 during the financial year 2021-22.
6.8 It is further submitted that COVID-19 pandemic has also been an
economic disruption. However, the government has made herculean efforts
to deter it from becoming a matter of economic distress, especially for the
poorer and marginalised sections of society. Considering the economywide
impact, the Government of India has announced several packages, protecting
the poor and vulnerable groups, extending cheap credit to small and medium
18 businesses, and reducing taxes in many areas. It is submitted that these
packages consist of lakhs of crores announced through the Pradhan Mantri
Garib Kalyan Yojana (PMGKY) and the Prime Minister Atma Nirbhar
Swastha Bharat Yojana (PMANSBY). It is submitted that to sustain the
economic activities to deal with the economic impacts of disaster, the
Central Government had to come out with several schemes either itself or
through the directives issued by the Reserve Bank of India to the banks for
the purpose of waiver of interest and/or restructuring of loan accounts. This
has created a huge burden on the overall economy of the nation and
23
exchequer of the Central Government, in particular. However, the Central
Government is doing its best to maintain its financial equilibrium without
compromising on the health, safety, food security and economic stability of
the country.
6.9 It is further submitted that the Government of India has also decided
to vaccinate the people of India as the most reliable preventive measure. To
achieve this goal by the end of this year, the Government has taken all the
steps to scale up the production, supplies, and import of vaccines. In the
annual budget for 2021-22, the Government of India has allocated Rs.
35,000 crores for the mass vaccination campaign.
6.10 It is further submitted that, the release of funds under National Health
Mission for FY 2018-19, FY 2019-20, FY 2020-21 and 2021-22 are as
under:
F.Y. BUDGET
ESTIMATE
(B.E.)
REVISED
ESTIMATE
(R.E.)
RELEASE
2018-19 25,154.61 26,118.05 26,027.62
2019-20 27,989.00 28,783.60 28,168.81
2020-21 27,989.00 29,316.75 29,747.84
2021-22 31,100.00 N.A. 1621.70
6.11 It is further submitted that in FY 2019-20, in addition to the above,
funds to the tune of Rs. 1113.21 Crore were released to the States /UTs
towards management and containment of COVID-19 over and above their
24
normal resource envelope under NHM. The release was from the savings of
Department of Health and Family Welfare (DoHFW). Therefore, the total
Release under NHM (including COVID-19): Rs. 29,282.02 Crore (Rs.
28,168.81 Cr + Rs.1,113.21 Cr).
6.12 It is further submitted that with regard to FY 2020-21, in addition to
the above, funds to the tune of Rs. 8257.89 Crore have been released to the
States/UTs under the India COVID-19 Emergency Response and Health
Systems Preparedness Package through NHM, towards management and
containment of COVID-19 pandemic, details of which are as under:
FINANCIAL SUPPORT UNDER EMERGENCY COVID RELIEF
PACKAGE
S.
No.
Programme Approved
Budget (Dec.’
2020)
(in Rs. crores)
Actual Expenditure
(as on 2nd Jun 21)
(in Rs. crores) (%)
1 National Health Mission 8,310 7580.14 91.2
2 Indian Council for
Medical Research
2,475 1275.00 51.5
3 National Centre for
Disease Control
95 74.10 78.0
4 Central Procurement
Division
3,400 3389.70 99.7
5 Ministry of Railways 720 720.00 100.0
Total 15,000 13038.97 86.9
6.13 It is further submitted that with regard to the prayer of the petitioner
to allow ex gratia compensation/assistance to the family members of the
deceased persons who have died due to COVID-19, while providing their
25
services in relief operations or when they were associated with preparedness
activities to combat COVID-19 pandemic, the Central Government, by its
pro-active and pre-emptive approach, had launched the Pradhan Mantri
Garib Kalyan Package (PMGKP) as early as on 30.03.2020. Under the
scheme, a comprehensive personal accident cover of Rs. 50 Lakh has been
provided to 22.12 Lakh Health Care Providers throughout the country,
including community health workers and private health workers who may
have been in direct contact and care of COVID-19 patients and may be at
risk of being impacted/infected by this. It is submitted that, further on
account of the unprecedented situation, private hospital staff/retired/
volunteer/local urban bodies/contract/daily wage/ad-hoc/outsourced staff
requisitioned by states/central hospitals/autonomous hospitals of
central/states/UTs, AIIMS & Institute of National Importance
(INI)s/hospitals of Central Ministries specifically drafted for care of
COVID-19 patients were also covered under the scheme. The benefits under
the said scheme have been extended for a further period of 180 days (w.e.f.
24.04.2021). The scheme is being implemented through an insurance policy
of New India Assurance Company. In order to further expedite the
processing of claims, a new system has been introduced as per which the
claims are now being processed by the District Collectors and forwarded to
the insurance company for release of funds to the claimants. So far, 442.4 ₹
crore have been released to the insurance company in this regard. Herein,
26
477 claims of healthcare workers under the scheme have already been given
the benefits, and further 344 claims of healthcare workers are under process.
6.14 It is further submitted that the financing of Disaster Risk Management
(DRM) under the Disaster Management Act, 2005, is based on the
recommendations of successive Finance Commissions, constituted under
Article 280 of the Constitution of India. It is further submitted that, the
allocation of the amount under NDRF and SDRF; guidelines on constitution
and administration of SDRF and NDRF; and the items and norms for
providing for relief assistance from SDRF/NDRF are based on the
constitutional recommendations of the successive Finance Commissions. It
is further stated that the successive Finance Commissions, after considering
all the facets of disaster risk management, have recommended the
expenditure for providing financial relief against 12 identified disasters and
accordingly, the victims of 12 disasters, viz. cyclone, drought, earthquake,
fire, flood, tsunami, hailstorm, landslide, avalanche, cloud burst, pest attack
and frost & cold wave, are provided relief from these funds, which is
mentioned in the memorandum dated 08.04.2015. It is submitted that, the
XV-Finance Commission in para 8.11 of Chapter 8 of its report for the
period 2021-22 to 2025-26, while making allocation under NDRF and SDRF
inter alia, has chosen, to deal with the issue of financing of Covid-19
pandemic. It is submitted that the recommendations of XVth Finance
27
Commission’s Report have been made in light of the experience gained and
also the context of the unprecedented Covid-19. It is submitted that this
report made recommendations for Disaster Risk Management, covering the
period from 2021-2022 to 2025-2026, expanding the scope of Disaster
Management beyond the traditional response and relief functions, to include
preparedness, mitigation, recovery and reconstruction, as reflected in chapter
8 of the XVth Finance Commission’s Report. It is submitted that this report
of XVth Finance Commission along with the Explanatory Memorandum
was laid before the Parliament, as mandated under Article 281 of the
Constitution of India.
It is submitted that in accordance with the recommendations of XVth
Finance Commission and the domain subject matter experts, the Union of
India devised the strategy to deal with, the extremely contagious, volatile
and ever changing impact of the mutations of the virus COVID 19, in the
best possible manner, utilizing all the financial, human and infrastructural
resources of the nation, rationally and judiciously, also keeping in mind the
future contingencies, rather than formulating the response in the straitjacket
formula of Minimum Standards of Relief, as contemplated under the
National Disaster Management Act, 2005.
28
It is submitted that therefore the issue is not of fiscal affordability, but
rather of the most rational, judicious and optimum usage of fiscal and all
other resources of the nation.
6.15 It is further submitted that, to appreciate the context of an ‘Ex-Gratia’
payment, Section 12 of Disaster Management Act, 2005 needs to be read
with section 46, wherein sub-section 46(2) reads as under:
“The National Disaster Response Fund shall be made available
to the National Executive Committee to be applied towards
meeting the expenses for emergency response, relief and
rehabilitation in accordance with the guidelines laid down by the
Central Government in consultation with the National
Authority.”
The Central Government has already declared COVID-19 as a
“notified disaster” under the Disaster Management Act, 2005. It is thereby
submitted that, as provided under Section 12 of the Disaster Management
Act, 2005, the National Disaster Management Authority (NDMA) has
already issued general Guidelines for “Minimum Standards of Relief” under
Section 12 of the Disaster Management Act. However, on the issue of ‘exgratia’ assistance on account of loss of life, the guidelines provide that the
norms provided by Government of India (Ministry of Home Affairs) for
assistance from SDRF should be the Minimum Standards of Relief.
6.16 It is further submitted that, the XVth Finance Commission, in para
8.141 of its report, had considered the request of the State Governments for
inclusion of a number of calamities under the eligible list of disasters under
29
SDRF/NDRF. Herein, after consideration, in para 8.143 of its report, the
Commission had observed that the list of notified disasters eligible for
funding from State Disaster Risk Management Fund (SDRMF) and National
Disaster Risk Management Fund (NDRMF) [new nomenclature used by
XVth Finance Commission which includes Response Fund and Mitigation
Fund] covers the needs of the States to a large extent and thus did not find
much merit in the request to expand its scope.
6.17 It is further submitted that, in order to supplement the efforts of the
State Government, the Central Government, on 14th March, 2020 by way of
a special one-time dispensation, decided to treat COVID-19 as a “notified
disaster” for the purpose of limited assistance towards containment measures
under SDRF on (i) Measures for quarantine for sample collection and
screening (ii) Procurement of essential equipments/labs for response to
COVID-19. Further, to deal with problems of migrant labourers, on 28th
March, 2020, the Central Government allowed use of SDRF for setting up
relief camps and to provide food, water, etc. to migrant workers and other
stranded people. On 23th September, 2020, the Central Government further
allowed use of SDRF by the States for oxygen generation for COVID-19
patients in States, to strengthen transport services for transporting oxygen,
and setting up containment zones, COVID-19 care centres.
6.18 It is further submitted that, ex-gratia payment under SDRF/NDRF
guidelines issued under section 46(2) of the Disaster Management Act, 2005
30
is available to persons who have died, in case of 12 notified disasters and
other local natural disasters which are notified by the State Governments.
However, COVID-19 Pandemic/Disaster has not been recommended by the
XVth Finance Commission for financing of relief measures from
SDRMF/NDRMF, which includes ex-gratia payment.
6.19 So far as the recommendations of the XVth Finance Commission on
insurance is concerned, it is submitted that, the XVth Finance Commission,
in para 8.131 of its report, has proposed 4 insurance interventions, which
needs to be further studied by the NDMA and the relevant Ministries about
their feasibility. In this regard, it is submitted that the recommendations of
the Commission are under consultation by NDMA with the stakeholders
concerned.
6.19.1 It is submitted that, presently there is no
guideline/policy/scheme in NDMA which relates to National Insurance
mechanism that may be used to pay for disaster related deaths due to Covid19. In this regard it is submitted that, the XVth Finance Commission has
proposed four Insurance interventions which need to be studied further by
the NDMA and relevant ministries for their feasibility. These interventions
are:
16.1 National Insurance Scheme for Disaster-related Deaths
16.2 Synchronising Relief Assistance with Crop Insurance
16.3 Risk Pool for Infrastructure Protection and Recovery
31
16.4 Access to International Reinsurance for Outlier Hazard Events
6.19.2 It is submitted that, in this context, in February 2020, a
‘National Workshop on Risk Insurance’ was held in Mumbai which was
attended by Member Secretary National Disaster Management Authority
(NDMA), National Institute of Disaster Management (NIDM), Insurance
Regulatory and Development Authority of India (IRDAI), States
Functionaries and leading insurance companies. Subsequently in the
Workshop, upon the suggestion of Member Secretary (NDMA), a Working
Group (WG) was constituted comprising members from NIDM, NDMA,
IRDAI as well as CEO’s/Chairman of Insurance Companies for
deliberations on risk insurance coverage against natural disasters in India.
In its final report submitted in April, 2021 to DM Division of Ministry of
Home Affairs, the WG has recommended a parametric trigger-based
insurance solution that can pay claims in the event of earthquake, cyclone,
extreme precipitation or river flood. In this regard, the NDMA has
requested NIDM to conduct a joint meeting/session with NDMA, NIDM,
and with the proposed States that have been selected for a pilot project, by
the WG.
6.19.3 It is submitted that, as States are the major stakeholders and
also beneficiaries of proposed insurance schemes, their recommendations
and availability of loss data are the crucial factors to be considered before
32
moving ahead. However, the insurance coverage being deliberated does not
cover risk insurance from pandemics or epidemics like the COVID-19.
6.19.4 It is further submitted that, the Asian Development Bank
(ADB) has also proposed a new ADB Technical Assistance (TA) concept for
promoting disaster risk transfer, including insurance in India. ADB through
its TA is looking forward to develop disaster risk financing solutions for
Indian States. In this regard, a meeting was also held on 05.04.2021
between ADB and NDMA. Herein, during the course of the meeting, ADB
proposed for a hybrid Insurance solution i.e., combination of Parametric
Insurance and Indemnity insurance; and also proposed for a joint meeting
between NDMA, Department of Financial Services (DFS), and MHA.
6.19.5 It is submitted that, NDMA has requested ADB to conduct the
proposed meeting as per convenience of MHA/DFS and inform NDMA
accordingly. However, the meeting scheduled on 12.04.2021, had to be
postponed due to the second wave of the pandemic. It is submitted that
however, as such, and as submitted hereinabove and so stated in the counter
affidavit, all frontline workers are covered under the insurance, the
particulars of which are stated hereinabove.
6.20 Now so far as the issue with respect to the issuance of the correct and
accurate death certificates with correct cause of death due to Covid-19 and
recording of Covid-19 deaths are concerned, it is submitted that there is a
statutory mechanism and any breach of the guidelines on the same would be
33
a criminal offence as stipulated under Section 188 of the IPC. It is
submitted that any death resulting from Covid-19 shall have to be certified,
i.e., as Covid death, failing which, everyone responsible (including the
certifying doctor) shall be responsible for penal consequences.
6.20.1 It is submitted that the broad guidelines for appropriate
recording of Covid-19 related deaths in India were prepared by the Indian
Council of Medical Research (ICMR) and were issued on 10.05.2020 for all
States for implementation and subsequently placed on the ICMR website.
This was further communicated to the MoHFW, Government of India.
Thereafter, the Ministry communicated it to all the States and UTs. This
guidance is to help and guide doctor’s certification for Covid-19 related
deaths. It is submitted that the guidelines clearly state that positive deaths,
implicate deaths relating to Covid-19. It is submitted that further these
guidelines are in sync with the World Health Organisation Mortality Coding.
6.20.2 It is further submitted that, on the question of issuance of death
certificates, the registration of birth and death is done under the provisions
of a Central Act, namely, Registration of Births and Deaths Act, 1969. This
Act was enacted in the year 1969 and was enforced in most of the
States/UTs from 1st April, 1970 to promote uniformity and comparability in
the registration of Births and Deaths across the country.
6.20.3 It is further submitted that the Registrar General of India at the
Central level coordinates and unifies the activities of registration throughout
34
the country and at the same time allowing enough scope for the State
Governments to evolve an efficient system of registration suited to the
characteristics of the respective administration.
6.20.4 It is submitted that, in the context of pandemic due to corona
virus, the office of the Registrar General of India (ORGI) had issued
directions/guidelines to the Chief Registrars of all States/UTs during April,
2020 to collect and certify the information on cause of death due to COVID19 as per two emergency codes created by World Health Organization
(WHO) for COVID-19 in the 10th revision of International Statistical
Classification (ICD-10) of Diseases and Related Health Problems. It is
submitted that recently in May, 2021, ORGI has also issued guidelines
regarding registration of death and recording the cause of death wherein it
has been advised that the death of a person should be registered within the
stipulated time of 21 days.
6.20.5 So far as the guidelines regarding death audit and death
certification, it is submitted that the MoHFW vide its letter dated 09.10.2020
has released guidelines on distinction between ‘Death Audit’ and ‘Death
Certification’.
It is submitted that ‘Death Certification’ is required to be done for
recording deaths in accordance with the regulations prescribed by the
Registrar General of India. The primary goal of certification of cause of
death (Death Certificate) is to identify and correctly classify all deaths due
35
to a medical condition (e.g., COVID-19) and to eliminate any discrepancy in
coding so as to obtain true estimates of burden of COVID-19 deaths. All
deaths with a diagnosis of COVID-19, irrespective of co-morbidities, are to
be classified as deaths due to COVID-19. It is submitted that the only
exception could be where there is a clear alternative cause of death, 47 that
cannot be attributed to COVID-19 (e.g., accidental trauma, poisoning, acute
myocardial infarction, etc), where COVID-19 is an incidental finding. 49.
Whereas, ‘Death Audit’ on the other hand is an administrative exercise to
identify gaps that contribute to deaths of patients. The aim is to improve
quality of healthcare services by suitable corrective measures to
prevent/minimize future deaths. It is submitted that the same is to be done
as per the indicative proforma.
6.21 Shri Tushar Mehta, learned Solicitor General appearing on behalf of
the Union of India has 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. It is
submitted that this Court in a catena of judgments on the interplay between
“may”, “shall” and “must”, have seldom held the phrases to their literary
interpretation, but instead looked into the intent of the legislature against the
backdrop of the prevailing circumstances. Heavy reliance is placed on the
36
decision of this Court in the case of Bachahan Devi v. Nagar Nigam,
Gorakhpur, (2008) 12 SCC 372.
7. Having heard the learned counsel for the respective
petitioners/intervenors and the reliefs sought in the respective petitions, the
reliefs/submissions on behalf of the petitioners/intervenors can be
summarized as under:
i) to direct the National Disaster Management Authority
(NDMA)/Central Government/State Governments to provide ex gratia
monetary compensation of Rs. 4 lacs or notified ex gratia monetary
compensation to the families of the deceased persons who have succumbed
to the pandemic of Covid-19, in view of Section 12 of DMA 2005;
ii) to direct the respondents/State Governments to fulfill their
obligation(s) to take care of victims of the calamity and their family
members;
iii) to issue an appropriate direction to the respondents – State
Governments to issue any official document stating cause of death, to the
family members of the deceased who died due to Covid-19; and
iv) to direct the respondents – Union of India and others to provide
social security and rehabilitation to the victims of Covid-19.
7.1 While considering the aforesaid submissions/reliefs sought, the scope
of judicial review on the policy decisions having financial implications
which might affect the economy of the country and which may also affect
37
the other priorities and which may affect the Government’s other schemes
declared to achieve the object and purpose of enactment of DMA 2005 are
required to be considered.
7.2 An identical question came to be considered by this Court in the
recent decision in Writ Petition (C) No. 476 of 2020 (Small Scale Industrial
Manufacturers Association (Regd.) v. Union of India and others), decided on
23.03.2021 (2021 (4) SCALE 415), and this Court had an occasion to
consider in detail the scope of judicial review. While considering the other
decisions of this Court on the limited scope of judicial review, in paragraphs
14 to 20, this Court has observed and held as under:
14. In catena of decisions and time and again this Court has considered
the limited scope of judicial review in economic policy matters. From
various decisions of this Court, this Court has consistently observed and
held as under:
i) The Court will not debate academic matters or concern itself with
intricacies of trade and commerce;
ii) It is neither within the domain of the courts nor the scope of
judicial review to embark upon an enquiry as to whether a particular
public policy is wise or whether better public policy can be evolved. Nor
are the courts inclined to strike down a policy at the behest of a petitioner
merely because it has been urged that a different policy would have been
fairer or wiser or more scientific or more logical. Wisdom and advisability
of economic policy are ordinarily not amenable to judicial review;
iii) Economic and fiscal regulatory measures are a field where Judges
should encroach upon very warily as Judges are not experts in these
matters.
14.1 In R.K. Garg v. Union of India (1981) 4 SCC 675, it has been
observed and held that laws relating to economic activities should be
viewed with greater latitude than laws touching civil rights such as
freedom of speech, religion etc. It is further observed that the legislature
should be allowed some play in the joints, because it has to deal with
complex problems which do not admit of solution through any doctrinaire
38
or straitjacket formula and this particularly true in case of legislation
dealing with economic matters.
14.2 In the case of Arun Kumar Agrawal v. Union of India (2013) 7
SCC 1, this Court had an occasion to consider the following observations
made the Supreme Court of the United States in the case of Metropolis
Theatre Co. v. Chicago, 57 L Ed 730: 228 US 61 (1913):
“…The problems of Government are practical ones and may justify, if they
do not require, rough accommodation, illogical, if may be, and
unscientific. But even such criticism should not be hastily expressed. What
is the best is not always discernible; the wisdom of any choice may be
disputed or condemned. Mere errors of Government are not subject to our
judicial review. It is only its palpably arbitrary exercises which can be
declared void…”
14.3 This Court in the case of State of M.P. v. Nandlal Jaiswal (1986) 4
SCC 566 has observed that the Government, as laid down in Permian
Basin Area Rate Cases, 20 L Ed (2d) 312, is entitled to make pragmatic
adjustments which may becalled for by particular circumstances. The
court cannot strike down a policy decision taken by the State Government
merely because it feels that another policy decision would have been fairer
or wiser or more scientific or logical. The court can interfere only if the
policy decision is patently arbitrary, discriminatory or mala fide.
14.4 In the case of BALCO Employees’ Union (Regd.) v. Union of India
(2002) 2 SCC 333, this Court has observed that Wisdom and advisability
of economic policies are ordinarily not amenable to judicial review unless
it can be demonstrated that the policy is contrary to any statutory provision
or the Constitution. In other words, it is not for the courts to consider
relative merits of different economic policies and consider whether a wiser
or better one can be evolved.
It is further observed that in the case of a policy decision on economic
matters, the courts should be very circumspect in conducting an enquiry or
investigation and must be more reluctant to impugn the judgment of the
experts who may have arrived at a conclusion unless the court is satisfied
that there is illegality in the decision itself.
14.5 In the case of Peerless General Finance and Investment Co. Ltd. v.
RBI, (1992) 2 SCC 343, it is observed and held by this Court that the
function of the Court is to see that lawful authority is not abused but not to
appropriate to itself the task entrusted to that authority. It is further
observed that a public body invested with statutory powers must take care
not to exceed or abuse its power. It must keep within the limits of the
authority committed to it. It must act in good faith and it must act
reasonably. Courts are not to interfere with economic policy which is the
function of experts. It is not the function of the courts to sit in judgment
over matters of economic policy and it must necessarily be left to the
expert bodies. In such matters even experts can seriously and doubtlessly
39
differ. Courts cannot be expected to decide them without even the aid of
experts.
It is further observed that it is not the function of the Court to amend and
lay down some other directions. The function of the court is not to advise
in matters relating to financial and economic policies for which bodies like
RBI are fully competent. The court can only strike down some or entire
directions issued by the RBI in case the court is satisfied that the directions
were wholly unreasonable or in violative of any provisions of the
Constitution or any statute. It would be hazardous and risky for the courts
to tread an unknown path and should leave such task to the expert bodies.
This Court has repeatedly said that matters of economic policy ought to be
left to the government.
14.6 In the case of Narmada Bachao Andolan v. Union of India, (2000)
10 SCC 664, in paras 229 & 233, it is observed and held as under:
“229. It is now well settled that the courts, in the exercise of their
jurisdiction, will not transgress into the field of policy decision. Whether to
have an infrastructural project or not and what is the type of project to be
undertaken and how it has to be executed, are part of policymaking
process and the courts are ill equipped to adjudicate on a policy decision
so undertaken. The court, no doubt, has a duty to see that in the
undertaking of a decision, no law is violated and people’s fundamental
rights are not transgressed upon except to the extent permissible under the
Constitution.
233. At the same time, in exercise of its enormous power the court
should not be called upon to or undertake governmental duties or
functions. The courts cannot run the Government nor can the
administration indulge in abuse or nonuse of power and get away with it.
The essence of judicial review is a constitutional fundamental. The role of
the higher judiciary under the Constitution casts on it a great obligation as
the sentinel to defend the values of the Constitution and the rights of
Indians. The courts must, therefore, act within their judicial permissible
limitations to uphold the rule of law and harness their power in public
interest. It is precisely for this reason that it has been consistently held by
this Court that in matters of policy the court will not interfere. When there
is a valid law requiring the Government to act in a particular manner the
court ought not to, without striking down the law, give any direction which
is not in accordance with law. In other words, the court itself is not above
the law.”
14.7 In Prag Ice & Oil Mills v. Union of India, AIR 1978 SC 1296, this
Court observed as under:
“We do not think that it is the function of the Court to set in judgment over
such matters of economic policy as must necessarily be left to the
government of the day to decide. Many of them are matters of prediction
of ultimate results on which even experts can seriously err and doubtlessly
differ. Courts can certainly not be expected to decide them without even
the aid of experts.”
40
14.8 In P.T.R Exports (Madras) P. Ltd. v. Union of India, (1996) 5 SCC
268, this Court observed as under:
“In matters of economic policy, it is settled law that the Court gives a large
leeway to the executive and the legislature Government would take diverse
factors for formulating the policy in the overall larger interest of the
economy of the country. The Court therefore would prefer to allow free
play to the Government to evolve fiscal policy in the public interest and to
act upon the same.”
15. What is best in the national economy and in what manner and to
what extent the financial reliefs/packages be formulated, offered and
implemented is ultimately to be decided by the Government and RBI on
the aid and advise of the experts. The same is a matter for decision
exclusively within the province of the Central Government. Such matters
do not ordinarily attract the power of judicial review. Merely because some
class/sector may not be agreeable and/or satisfied with such
packages/policy decisions, the courts, in exercise of the power of judicial
review, do not ordinarily interfere with the policy decisions, unless such
policy could be faulted on the ground of mala fide, arbitrariness,
unfairness etc.
16. There are matters regarding which Judges and the Lawyers of the
courts can hardly be expected to have much knowledge by reasons of their
training and expertise. Economic and fiscal regulatory measures are a field
where Judges should encroach upon very warily as Judges are not experts
in these matters.
17. The correctness of the reasons which prompted the government in
decision taking one course of action instead of another is not a matter of
concern in judicial review and the court is not the appropriate forum for
such investigation. The policy decision must be left to the government as it
alone can adopt which policy should be adopted after considering of the
points from different angles. In assessing the propriety of the decision of
the Government the court cannot interfere even if a second view is
possible from that of the government.
18. Legality of the policy, and not the wisdom or soundness of the
policy, is the subject of judicial review. The scope of judicial review of the
governmental policy is now well defined. The courts do not and cannot act
as an appellate authority examining the correctness, stability and
appropriateness of a policy, nor are the courts advisers to the executives on
matters of policy which the executives are entitled to formulate.
19. Government has to decide its own priorities and relief to the
different sectors. It cannot be disputed that pandemic affected the entire
country and barring few of the sectors. However, at the same time, the
Government is required to take various measures in different fields/sectors
like public health, employment, providing food and shelter to the common
people/migrants, transportation of migrants etc. and therefore, as such, the
government has announced various financial packages/reliefs. Even the
41
government also suffered due to lockdown, due to unprecedented covid19
pandemic and also even lost the revenue in the form of GST. Still, the
Government seems to have come out with various reliefs/packages.
Government has its own financial constraints. Therefore, as such, no writ
of mandamus can be issued directing the Government/RBI to
announce/declare particular relief packages and/or to declare a particular
policy, more particularly when many complex issues will arise in the field
of economy and what will be the overall effect on the economy of the
country for which the courts do not have any expertise and which shall be
left to the Government and the RBI to announce the relief
packages/economic policy in the form of reliefs on the basis of the advice
of the experts. Therefore, no writ of mandamus can be issued.
20. No State or country can have unlimited resources to spend on any
of its projects. That is why it only announces the financial reliefs/packages
to the extent it is feasible. The court would not interfere with any opinion
formed by the Government if it is based on the relevant facts and
circumstances or based on expert advice. It is not normally within the
domain of any court to weigh the pros and cons of the policy or to
scrutinize it and test the degree of its beneficial or equitable disposition for
the purpose of varying, modifying or annulling it, based on howsoever
sound and good reasoning, only where it is arbitrary and violative of any
Constitutional, statutory or any other provisions of law. When Government
forms its policy, it is based on a number of circumstances on facts, law
including constraints based on its resources. It is also based on expert
opinion. It would be dangerous if court is asked to test the utility,
beneficial effect of the policy or its appraisal based on facts set out on
affidavits.”
7.3 However, at the same time, if the statutory authority/authority has
failed to perform its statutory duty cast under the statute or constitutional
duty, a mandamus can be issued directing the authority to perform its duty
cast under the statute. In such a situation, the Court would be absolutely
justified in issuing a writ of mandamus directing the authority to perform its
statutory duty/constitutional duty.
42
8. The reliefs sought in the present petitions are required to be
considered in the light of the observations made hereinabove on the scope of
judicial review.
While praying for ex gratia compensation of Rs. 4 lacs to the family
members of the persons who have died due to Covid-19, heavy reliance is
placed on Section 12 of DMA 2005 and the earlier decision contained in the
letter dated 8.4.2015, by which it was provided to pay Rs. 4 lacs by way of
ex gratia to the kin/family members of the persons who died due to disaster,
to be paid from SDRF and NDRF. Section 12 of DMA 2005, which has
been heavily relied upon, reads as under:
12. Guidelines for minimum standards of relief. —The National
Authority shall recommend guidelines for the minimum standards of relief
to be provided to persons affected by disaster, which shall include, —
(i) the minimum requirements to be provided in the relief camps in
relation to shelter, food, drinking water, medical cover and
sanitation;
(ii) the special provisions to be made for widows and orphans;
(iii) ex gratia assistance on account of loss of life as also assistance on
account of damage to houses and for restoration of means of
livelihood;
(iv) such other relief as may be necessary.
8.1 It is the case on behalf of the respective petitioners that as mandated
by Section 12 of DMA 2005, the National Authority shall have to
recommend guidelines for the minimum standards of relief to be provided to
43
persons affected by disaster, which shall include ex gratia assistance on
account of loss of life… [Section 12(iii)].
8.2 On the other hand, it is the case on behalf of the Union of India that
the word “shall” used in Section 12 may be read as “may” and it should be
read as directory/discretionary and shall not be construed as “mandatory”. It
is also the case on behalf of the Union of India that as such by providing
various schemes and by taking various steps the Government has already
made a provision/provided the minimum standards of relief by making
provision from NDRF/SDRF, which can be said to be reliefs under Section
12 of DMA 2005. It is also the case on behalf of the Union of India that it is
not the question of financial inability, but the question is to give priorities to
other sectors/fields/reliefs, while taking other measures to deal with the
disaster or the mitigation or preparedness and capacity building for dealing
with the threatening disaster situation. It is the case on behalf of the Union
of India that instead of giving ex gratia compensation of Rs. 4 lacs to the
family members of the deceased of the persons who have died due to Covid19, a conscious decision has been taken by the Finance Commission and/or
Union of India to make provision and/or use the fund from NDRF/SDRF for
the purpose of creating infrastructure, hospitals, testing, vaccination, ICU
facilities and other allied matters including providing food to the
BPL/migrant labourers, and not to pay ex gratia assistance.
44
9. While appreciating the submission on behalf of the Union of India
that the word “shall” used in Section 12 of DMA 2005 may be read as
“may” and the same shall not be construed as “mandatory” and may be
considered as “directory/discretionary”, the object and purpose of enactment
of Disaster Management Act, 2005 and the relevant provisions of DMA
2005 are required to be referred to and considered.
9.1 The Disaster Management Act, 2005 has been enacted for prevention
and mitigation effects of disasters and for undertaking a holistic, coordinated
and prompt response to any disaster situation. It has been enacted on
disaster management to provide for requisite institutional mechanisms for
drawing up and monitoring the implementation of the disaster management
plans, ensuring measures by various wings of Government. With the above
aim and object, DMA 2005 has been enacted.
9.2 The DMA 2005 provides for setting up of a National Disaster
Management Authority under the Chairmanship of Hon’ble Prime Minister.
It also provides for constitution of State Disaster Management Authorities
under the Chairmanship of the Chief Ministers and District Disaster
Management Authorities under the Chairmanship of District Magistrates. It
also provides for concerned Ministries or Departments to draw up
department-wise plans in accordance with the national disaster management
plan. It also provides for constitution of a National Disaster Response Force
45
and setting up the National Institute of Disaster Management. It also further
provides for the constitution of the National Fund for Disaster Response and
the National Fund for Disaster Mitigation and similar funds at the State and
District levels. The National Authority has been constituted under Section 3
of DMA 2005. Section 6 provides for power and functions of National
Authority, which reads as under:
6. Powers and functions of National Authority. — (1) Subject to the
provisions of this Act, the National Authority shall have the responsibility
for laying down the policies, plans and guidelines for disaster management
for ensuring timely and effective response to disaster.
(2) Without prejudice to generality of the provisions contained in subsection (1), the National Authority may—
(a) lay down policies on disaster management;
(b) approve the National Plan;
(c) approve plans prepared by the Ministries or Departments of the
Government of India in accordance with the National Plan;
(d) lay down guidelines to be followed by the State Authorities in
drawing up the State Plan;
(e) lay down guidelines to be followed by the different Ministries or
Departments of the Government of India for the purpose of integrating the
measures for prevention of disaster or the mitigation of its effects in their
development plans and projects;
(f) coordinate the enforcement and implementation of the policy and
plan for disaster management;
(g) recommend provision of funds for the purpose of mitigation;
(h) provide such support to other countries affected by major disasters
as may be determined by the Central Government;
(i) take such other measures for the prevention of disaster, or the
mitigation, or preparedness and capacity building for dealing with the
threatening disaster situation or disaster as it may consider necessary;
(j) lay down broad policies and guidelines for the functioning of the
National Institute of Disaster Management;
(3) The Chairperson of the National Authority shall, in the case of
emergency, have power to exercise all or any of the powers of the National
46
Authority but exercise of such powers shall be subject to ex post facto
ratification by the National Authority.
9.3 Section 7 of the Act provides for constitution of advisory committee
by National Authority which shall consist of experts in the field of disaster
management and having practical experience of disaster management at the
national, State or district level to make recommendations on different
aspects of disaster management. Section 8 of the Act provides for
constitution of National Executive Committee to assist the National
Authority in the performance of its functions under the Act. Section 10
provides for powers and functions of National Executive Committee and the
National Executive Committee shall assist the National Authority in the
discharge of its functions and have the responsibility for implementing the
policies and plans of the National Authority and ensure the compliance of
directions issued by the Central Government for the purpose of disaster
management in the country. Section 10 of DMA 2005 reads as under:
“10. Powers and functions of National Executive Committee. — (1) The
National Executive Committee shall assist the National Authority in the
discharge of its functions and have the responsibility for implementing the
policies and plans of the National Authority and ensure the compliance of
directions issued by the Central Government for the purpose of disaster
management in the country.
(2) Without prejudice to the generality of the provisions contained in subsection (1), the National Executive Committee may—
(a) act as the coordinating and monitoring body for disaster
management;
(b) prepare the National Plan to be approved by the National
Authority;
47
(c) coordinate and monitor the implementation of the National Policy;
(d) lay down guidelines for preparing disaster management plans by
different Ministries or Departments of the Government of India and the
State Authorities;
(e) provide necessary technical assistance to the State Governments
and the State Authorities for preparing their disaster management plans in
accordance with the guidelines laid down by the National Authority;
(f) monitor the implementation of the National Plan and the plans
prepared by the Ministries or Departments of the Government of India;
(g) monitor the implementation of the guidelines laid down by the
National Authority for integrating of measures for prevention of disasters
and mitigation by the Ministries or Departments in their development plans
and projects;
(h) monitor, coordinate and give directions regarding the mitigation
and preparedness measures to be taken by different Ministries or
Departments and agencies of the Government;
(i) evaluate the preparedness at all governmental levels for the
purpose of responding to any threatening disaster situation or disaster and
give directions, where necessary, for enhancing such preparedness;
(j) plan and coordinate specialised training programme for disaster
management for different levels of officers, employees and voluntary rescue
workers;
(k) coordinate response in the event of any threatening disaster
situation or disaster;
(l) lay down guidelines for, or give directions to, the concerned
Ministries or Departments of the Government of India, the State
Governments and the State Authorities regarding measures to be taken by
them in response to any threatening disaster situation or disaster;
(m) require any department or agency of the Government to make
available to the Na material resources as are available with it for the
purposes of emergency response, rescue and relief;
(n) advise, assist and coordinate the activities of the Ministries or
Departments of the Government of India, State Authorities, statutory bodies,
other governmental or non-governmental organisations and others engaged
in disaster management;
(o) provide necessary technical assistance or give advice to the State
Authorities and District Authorities for carrying out their functions under
this Act;
(p) promote general education and awareness in relation to disaster
management; and
(q) perform such other functions as the National Authority may require
it to perform.”
48
9.4 Section 12 provides for the National Authority to recommend
guidelines for the minimum standards of relief to be provided to persons
affected by disaster, and which shall include …. (iii) ex gratia assistance on
account of loss of life as also assistance on account of damage to houses
and for restoration of means of livelihood. Section 12 reads as under:
12. Guidelines for minimum standards of relief. —The National
Authority shall recommend guidelines for the minimum standards of relief
to be provided to persons affected by disaster, which shall include, —
(i) the minimum requirements to be provided in the relief camps in
relation to shelter, food, drinking water, medical cover and
sanitation;
(ii) the special provisions to be made for widows and orphans;
(iii) ex gratia assistance on account of loss of life as also assistance on
account of damage to houses and for restoration of means of
livelihood;
(iv) such other relief as may be necessary.
9.5 Section 19 provides for similar guidelines for minimum standards of
relief by the State Authority. As per Section 46, the Central Government has
to constitute a fund to be called the National Disaster Response Fund
(NDRF) for meeting any threatening disaster situation or disaster. As per
sub-section 2 of Section 46, the NDRF shall be made available to the
National Executive Committee to be applied towards meeting the expenses
for emergency response, relief and rehabilitation in accordance with the
guidelines laid down by the Central Government in consultation with the
National Authority. Over and above the NDRF, the Central Government
49
may also constitute a fund to be called the National Disaster Mitigation Fund
for projects exclusively for the purpose of mitigation. A similar disaster
response fund is to be constituted by the State Authority, which is known as
State Disaster Response Fund (SDRF); District Disaster Response Fund;
State Disaster Mitigation Fund and District Disaster Mitigation Fund as per
Section 48 of DMA 2005.
9.6 “Disaster: as defined under Section 2(d) of DMA 2005 means a
catastrophe, mishap, calamity or grave occurrence in any area, arising from
natural or manmade causes, or by accident or negligence which results in
substantial loss of life or human suffering or damage to, and destruction of,
property, or damage to, or degradation of, environment, and is of such a
nature or magnitude as to be beyond the coping capacity of the community
of the affected area.
“Disaster Management” is also defined under Section 2(e) of DMA
2005, which reads as under:
(e) “disaster management” means a continuous and integrated process of
planning, organising, coordinating and implementing measures which are
necessary or expedient for—
(i) prevention of danger or threat of any disaster;
(ii) mitigation or reduction of risk of any disaster or its severity or
consequences;
(iii) capacity-building;
(iv) preparedness to deal with any disaster;
(v) prompt response to any threatening disaster situation or disaster;
(vi) assessing the severity or magnitude of effects of any disaster;
(vii) evacuation, rescue and relief;
(viii) rehabilitation and reconstruction
50
As per Section 2(i), “mitigation” means measures aimed at reducing the
risk, impact or effects of a disaster or threatening disaster situation. As per
Section 2(m) “preparedness” means the state of readiness to deal with a
threatening disaster situation or disaster and the effects thereof.
10. Considering the Statement of Objects and Reasons for enactment of
DMA 2005 and the relevant provisions of the DMA 2005, referred to
hereinabove, it is to be considered whether the word “shall” used in Section
12 is required to be interpreted and considered as “shall” or “may” and
whether it is “mandatory” or “directory/discretionary” for the National
Authority to recommend guidelines for the minimum standards of relief to
be provided to persons affected by disasters including ex gratia assistance on
account of loss of life.
10.1 In Section 12 of DMA 2005, the word “shall” is used twice. The
intent of the legislature by using the word “shall” twice is very clear and the
same can be in tune with the Statement of Objects and Reasons for
enactment of DMA 2005 and the functions and powers of the National
Authority. One of the Objects and Purposes is “mitigation”. As per Section
6(1) and Sub-section 2(g) of Section 6, the National Authority shall have the
responsibility for laying down the policies, plans and guidelines for disaster
management and recommend provision of funds for the purpose of
mitigation. Section 12 specifically provides that the National Authority
51
“shall” recommend guidelines for the minimum standards of relief to be
provided to persons affected by disaster, which “shall” include, (i) the
minimum requirements to be provided in the relief camps in relation to
shelter, food, drinking water, medical cover and sanitation; (ii) the special
provisions to be made for widows and orphans; and (iii) ex gratia
assistance on account of loss of life as also assistance on account of
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. As per
the settled proposition of law laid down by this Court in a catena of
decisions, when the language of the provision is plain and unambiguous,
statutory enactments must ordinarily be construed according to its plain
meaning. The beneficial provision of the legislation must be literally
construed so as to fulfil the statutory purpose and not to frustrate it. (See
Bhavnagar University (supra) (para 26).
10.2 Under Section 12 of DMA 2005, the National Authority is mandated
to recommend guidelines for the minimum standards of relief. Minimum
standards of relief are, as such, not defined under the Act. Then what is
somewhat intended by the legislature while providing minimum standards of
relief is to be gathered from Section 12 itself. Ex gratia assistance on
52
account of loss of life as also assistance on account of damage to houses and
for restoration of means of livelihood therefore can be said to be part of
minimum standards of relief of which the National Authority is required to
recommend guidelines.
10.3 As observed by this Court in the case of Bachahan Devi (supra), even
to interpret the legal import of the word “may”, the Court has to consider
various factors, namely, the object and the scheme of the Act, the context
and the background against which the words have been used, the purpose
and the advantages sought to be achieved by the use of this word, and the
like. In paragraph 18, it is observed and held as under:
“18. It is well settled that the use of the word “may” in a statutory provision
would not by itself show that the provision is directory in nature. In some
cases, the legislature may use the word “may” as a matter of pure
conventional courtesy and yet intend a mandatory force. In order, therefore,
to interpret the legal import of the word “may”, the court has to consider
various factors, namely, the object and the scheme of the Act, the context
and the background against which the words have been used, the purpose
and the advantages sought to be achieved by the use of this word, and the
like. It is equally well settled that where the word “may” involves a
discretion coupled with an obligation or where it confers a positive benefit
to a general class of subjects in a utility Act, or where the court advances a
remedy and suppresses the mischief, or where giving the words directory
significance would defeat the very object of the Act, the word “may” should
be interpreted to convey a mandatory force. As a general rule, the word
“may” is permissive and operative to confer discretion and especially so,
where it is used in juxtaposition to the word “shall”, which ordinarily is
imperative as it imposes a duty. Cases, however, are not wanting where the
words “may”, “shall” and “must” are used interchangeably. In order to find
out whether these words are being used in a directory or in a mandatory
sense, the intent of the legislature should be looked into along with the
pertinent circumstances.”
10.4 Therefore, to construe the word “shall” as “may” and as
directory/discretionary, the very object and purpose of the Act will be
53
defeated. The word “shall” used twice in Section 12 significantly imposes a
duty cast upon the National Authority to issue guidelines for the minimum
standards of relief which shall include ex gratia assistance on account of loss
of life as also assistance on account of damage to houses and for restoration
of means of livelihood. 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. At this stage, it is
required to be noted and it is not in dispute and cannot be disputed that
Covid-19 pandemic is a disaster within the meaning of Section 2(d) of DMA
2005. Not only that even in the letter dated 14.03.2020, the Central
Government has declared Covid-19 pandemic as “notified disaster”. Even,
all other steps including the guidelines and SOPs are issued under the
provisions of DMA 2005. Therefore, once the Covid-19 pandemic is
declared as “notified disaster”/national disaster, even otherwise the same can
be disaster within the meaning of Section 2 (d) of DMA 2005, the provisions
of Section 12 of DMA 2005 shall be applicable and it has to be applied to
the Covid-19 pandemic which is declared as “notified disaster”/national
disaster. The submission on behalf of the Union of India that considering
the peculiar nature of the Covid-19 pandemic, even if Covid-19 pandemic is
declared and/or considered as a disaster, Section 12 of DMA 2005 may not
be applicable and/or the word “shall” should be construed as “may” as
54
when DMA 2005 was enacted, the legislature might not have visualised that
such a pandemic/disaster would occur which would have a long-time
effect/impact. The aforesaid cannot be accepted for the simple reason that
every disaster as defined under Section 2(d) of the Act is a disaster and once
it is declared as a “notified disaster”/national disaster/disaster, Section 12 of
DMA 2005 shall be applicable and is mandatorily to be complied with, with
respect to any disaster, within the meaning of Section 2(d) of DMA 2005.
As observed hereinabove, nothing is on record that any
decision/guidelines has/have been issued by the National Authority for ex
gratia assistance on account of loss of life due to Covid-19 pandemic while
recommending guidelines for minimum standards of relief to be provided to
the persons affected by the disaster/Covid-19 pandemic. Once, it is
observed as above and it is held that the word “shall” have to be read as
“shall” and it is the mandatory statutory duty cast upon the National
Authority to recommend guidelines for the minimum standards of relief
which shall include ex gratia assistance on account of loss of life, 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 cast under Section 12 and therefore a writ of mandamus is to
be issued to the National Authority to recommend appropriate guidelines for
55
ex gratia assistance on account of loss of life due to Covid-19 pandemic
while recommending guidelines for the minimum standards of relief to be
provided to persons affected by disaster/Covid-19 pandemic as mandatory
under Section 12 of DMA 2005.
11. Now the next question which is posed for the consideration of this
Court is, what further relief the petitioners are entitled to. 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 Rs. 4 lacs, as prayed by the petitioners?
Whether the Court can/may direct to pay a particular amount by way of ex
gratia assistance?
11.1 The scope of judicial review is discussed hereinabove. It cannot also
be disputed that Covid-19 pandemic is a peculiar disaster, which the country
and the world has experienced in a long time. It has an extraordinary spread
and impact from that of other natural disaster/disasters. Therefore, its
extreme spread and impact requires an approach different from the one that
is applied to other disasters/natural disasters. Other natural disasters would
have a different effect/impact. Covid-19 pandemic is having an on-going
impact/effect. The pandemic is still not over in the country as also the world
and it is extremely difficult to predict with accuracy, it’s further trajectory,
mutations and waves. Looking to its peculiarity and the impact and effect,
the Covid-19 pandemic is required to be viewed differently from other
56
disasters. There is a need to focus simultaneously on prevention,
preparedness, mitigation and recovery, which calls for a different order of
mobilization of both financial and technical resources. The Government is
required to and as so stated in the counter affidavit and as submitted by Shri
Mehta, learned Solicitor General, a huge fund is required for the purpose of
creating the infrastructure, hospitals, ventilators, oxygen, testing,
vaccination etc. According to the Central Government, the Government has
bonafidely and in the larger public interest has decided the priorities and
focused simultaneously on prevention, preparedness, mitigation and
recovery. According to the official figure, the pandemic has caused more
than 3,85,000 deaths, the same is likely to increase further. It cannot be
disputed that these deaths have affected the families from all classes – the
rich and poor, professionals and informal workers, and traders and farmers.
It has also affected the kins as well as elderly members, old parents. Many
have lost the sole bread earner. However, at the same time, and as observed
hereinabove, the impact and effect of the present pandemic/disaster would
be different from the other disasters/natural disasters for which ex gratia
assistance is provided. There shall not be any justification to provide for the
same/similar amount by way of ex gratia assistance as provided in the case
of other disasters/natural disaster, i.e., Rs. 4 lacs.
12. As observed hereinabove, the Government has to decide its own
priorities and reliefs to the different sectors/for different reliefs. The
57
Government is required to take various measures in different fields/sectors,
like public health, employment, providing food and shelter to the common
people/migrants, transportation to migrants etc. The Government is also
required to deal with the effect of the pandemic on the economy. As
observed hereinabove, a huge amount is required to be spent from the
NDRF/SDRF, even while providing minimum standards of relief. It cannot
be disputed that ex gratia assistance would also have financial implications
and which may affect the other minimum standards of relief to be provided
to the persons affected by disaster. No State or country has unlimited
resources. That is why it only announces the financial reliefs/packages to
the extent it is possible. When the Government forms its policy, it is based
on a number of circumstances, on facts, law including constraint based
governmental resources. As observed by this Court in the case of Nandlal
Jaiswal (supra), the Government, as laid down in Permian Basin Area Rate
Cases, 20 L Ed (2d) 312, is entitled to make pragmatic adjustments which
may be called for by particular circumstances. As observed by this Court
hereinabove, the function of the Court is to see that lawful authority is not
abused but not to appropriate to itself the task entrusted to that authority.
Therefore, the Courts would be very slow to interfere with priorities
fixed by the government in providing reliefs, unless it is patently arbitrary
and/or not in the larger public interest at all. The Government should be free
to take policy decisions/decide priorities (of course to achieve the ultimate
58
goal of DMA 2005, government should be free to take its own
decisions/priorities while providing minimum standards of relief and even
towards preparedness, mitigation, prevention and recovery), subject to the
availability of the resources/funds and the amount to be spent towards other
reliefs on the aid and advice of the experts and looking to the circumstances
from time to time. Therefore, no relief can be granted to direct the National
Authority/Central Government/State Governments to pay a particular
amount towards ex gratia assistance on account of loss of life to the family
members of the persons who have died due to Covid-19. It should be left to
the wisdom of National Authority while considering the
guidelines/recommendations of the Finance Commission in its XVth
Finance Commission Report and the funds required for other
reliefs/priorities. The recommendations of the Finance commission provide
sufficient guidelines. However, at the same time, as observed hereinabove,
while recommending guidelines for the minimum standards of relief to be
provided to persons affected by disaster/Covid-19 pandemic, the authority
has to consider issuing/recommend guidelines on ex gratia assistance on
account of loss of life. As observed hereinabove, 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.
59
12.1 At this stage, it is required to be noted and it is reported that some
States are paying ex gratia assistance to the family members of the persons
who have died due to Covid-19 pandemic, like State of Bihar paying Rs. 4
lacs, Karnataka paying Rs. 1 lac and Delhi paying Rs. 50,000/-. However, it
is to be noted that the same is paid from the Chief Minister Relief Fund or
other relief funds, but not from SDRF. To avoid any heart-burning and
discriminatory treatment, it would be appropriate for the National Authority
to recommend uniform guidelines while providing for the minimum
standards of relief in the form of ex gratia assistance on account of loss of
life, as mandated under Section 12 of the Act. However, at the same time, it
will always be open for the concerned States to provide for ex gratia
assistance on account of loss of life and other reliefs from their own relief
funds (other than SDRF) as it would be a policy decision by the concerned
States and they may provide such other relief/reliefs, looking to the
availability of the fund. However, merely because some States might have
been paying the ex gratia assistance on account of loss of life to the family
members of the persons who have died due to Covid-19 pandemic, for the
reasons stated hereinabove, no writ of mandamus can be issued directing the
Central Government/State Governments to pay a particular sum/amount by
way of ex gratia assistance as the utilization of the fund/money by the
Central Government would depend upon the priorities fixed by them which
includes the money/fund to be used for prevention, preparedness, mitigation,
60
recovery etc. Therefore, what amount to be paid by way of ex gratia
assistance to the family members of the persons who died due to Covid-19
pandemic should be left to the National Authority/Central Government.
13. Now so far as the prayer to issue appropriate direction to the
respondents – State Governments to issue an official document stating
Covid-19 related as cause of death, to the family members of the deceased
who died due to Covid-19 is concerned, it is required to be noted that it is
the duty of the every authority to issue accurate/correct death certificates
stating the correct and accurate cause of death, so that the family members
of the deceased who died due to Covid-19 may not face any difficulty in
getting the benefits of the schemes that may be declared by the Government
for the death of the deceased, who died due to Covid-19. In the death
certificate also, if a person has died due to Covid-19 and/or any other
complications/disease due to Covid-19, it should be specifically mentioned
in the death certificate.
We have gone through the counter affidavit filed on behalf of the
Union Government on the aforesaid and the guidelines issued by the ICMR
as well as the format and the guidelines issued to the Registering Authorities
of the concerned State Governments. However, we feel that the procedure
should be as simplified as it can be. Therefore, a simplified
procedure/guidelines is/are required to be issued by the Central Government
and/or appropriate authority for issuance of an official document/death
61
certificate 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. For
guidance, such guidelines may provide if a person has died after he was
found covid positive and he has died within two to three months, either in
the hospital or outside the hospital or at home, the death certificate/official
document must be issued to the family members of the deceased who died
due to Covid-19 stating the cause of death as “Died due to Covid-19”.
He/she might have died even due to other complications, however, due to
Covid-19. In the guidelines, it may also be provided that if the family
member(s) of the deceased who died due to Covid-19 has/have any
grievance that in the death certificate/official document the correct/exact
cause of death is not mentioned, he/she must be provided with some remedy
to approach the appropriate authority to get the death certificate/official
document corrected.
14. Now so far as the prayer to issue an appropriate direction directing the
respondents – State Governments to fulfil their obligation to take care of the
victims of the calamity and their family members is concerned, the prayer
sought is too vague. Even otherwise, considering the counter affidavit filed
on behalf of the Union of India it demonstrates the various reliefs declared
by the Union Government. As such, no mandamus can be issued directing
the respondents – State Governments to declare a particular
62
policy/relief/relief package in general and the same shall be within the
domain of policy decision and would have financial implications also.
15. Now so far as one additional relief sought in Writ Petition (Civil) No.
539 of 2021 to issue appropriate direction directing the respondents – Union
of India and others to provide social security in the form of insurance is
concerned, from the XVth Finance Commission Report, it appears that the
Finance Commission in its report has already made recommendations of the
same and from the counter affidavit it appears that the Union Government
has actively considering the same in consultation with other stakeholders.
We hope and trust that the Union Government will consider the
recommendations made by the Finance Commission made in its XVth
Finance Commission Report and take an appropriate decision in
consultation with other stakeholders and the experts.
Even otherwise, from the counter affidavit filed on behalf of the
Union of India, it appears that the Central Government has already launched
the Pradhan Mantri Garib Kalyan Package under which a comprehensive
personal accident cover of Rs. 50 lakhs have been provided to 22.12 lakh
health care providers throughout the country, including community health
workers and private health workers who may have been in direct contact and
care of Covid-19 patients and may be at risk of being impacted/infected by
this. It is further reported that on account of unprecedented situation, private
hospital staff/retired/volunteer/local urban bodies/contract/daily wage/ad63
hoc/outsourced staff requisitioned by States/Central Hospitals/autonomous
hospitals of Central/States/Union Territories, AIIMS & Institute of National
Importance (INI)/hospitals of Central Ministries specifically drafted for care
of Covid-19 patients are also covered under the scheme. The benefits under
the said scheme have been extended for a further period of 180 days with
effect from 24.04.2021. Therefore, it appears that sufficient care has been
taken. However, some class might have been left out, like those persons
working at premortem. Thus, the Union Government may look into the
same and cover them also who might have been left out and who can be said
to be in direct contact of dead bodies of Covid-19 patients. Even, Shri
Tushar Mehta, learned Solicitor General has also stated at the Bar that the
Union Government/appropriate authority shall look into the same.
16. In view of the above and for the reasons stated above, we dispose of
the present writ petitions with the following directions:
1) 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
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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;
2) The Appropriate Authority is directed to issue simplified guidelines
for issuance of Death Certificates/official document 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. Such guidelines may also provide the remedy to the
family members of the deceased who died due to Covid-19 for
correction of the death certificate/official document issued by the
appropriate authority, if they are not satisfied with the cause of death
mentioned in the death certificate/official document issued by the
appropriate authority; and
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3) 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.
17. As a sequel to the above, all pending interlocutory applications also
stand disposed of.
…………………………….J.
[ASHOK BHUSHAN]
…………………………….J.
[M.R. SHAH]
New Delhi;
June 30, 2021.
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