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Ex-gratia for Covid-19 victims: A Statutory Duty

While observing that the centre could not stay away from paying the amount to the kin of Covid-19 patients who died, the Court asked NDMA to frame guidelines in this regard while abstaining from specifying the compensation.

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The Supreme Court on June 30, 2021 directed the National Disaster Management Authority (NDMA) to lay down guidelines for the minimum standard of relief, including payment of ex-gratia assistance to family members of people who succumbed to Covid-19.

The top court in its judgment said: “We direct NDMA to form guidelines for ex-gratia compensation for family members of persons who succumbed to Covid as per minimum standards of relief. The reasonable amount to be provided is left to the wisdom of national authority.”

The apex court, therefore, made it abundantly clear that as far as the Covid-19 pandemic was concerned, it was a disaster under the Disaster Management Act (DMA).

The Court also asked NDMA to provide ex-gratia compensation to families of Covid-19 victims. Its response came after a batch of petitions sought directions to the state and central governments to provide ex-gratia compensation.

The pandemic over the past year has ravaged Indian households. According to the recent estimate by the Centre for Monitoring Indian Economy, incomes of 97 percent households in the country has been adversely impacted by the pandemic. Since the pandemic began, unemployment numbers have shot up to an unprecedented high and the scale of devastation unleashed by the second wave of the pandemic has been indeterminable and fears of a third wave are only rising as the coronavirus continuous to mutate.

In March 2020, Union home minister had declared Covid-19 as a disaster and notified it under the DMA. Section 12 of DMA mandates ex-gratia assistance on account of the loss of life, damage to houses and for restoring means of livelihood.

The Supreme Court in its ruling stated that the language of Section 12 of the DMA was clear and unambiguous. The Court noted that Section 12 of the law used the word “shall” in reference to guidelines and concluded that the provision was mandatory, and therefore, the centre was legally obligated to pay ex-gratia compensation under DMA.

Sub-Section (3) of Section 12 provides for ex-gratia compensation to people who have died or suffered any kind of loss due to a disaster. The collective reading of the Section makes it clear with the use of the word “shall” and “ex-gratia” that it is mandatory for the centre under the law to provide the compensation immediately.

The central government’s disaster management authority has the legal and ethical responsibility to provide compensation to people who have lost their lives or suffered losses during Covid-19. The High Courts across the country have already pulled up the central government for its lack of preparedness in handling the pandemic and the crippling medical infrastructure which led to the death of so many people. The government authorities have also been pulled up for negligence with regard to the timely supply of medicines and other drugs for the treatment of Covid-19. Therefore, for them to provide compensation is not merely a legal or statutory obligation but also a moral and ethical responsibility.

The Court rejected the centre’s contention that it was not bound to make ex-gratia payments since Covid-19 was different from other natural disasters, such as floods and earthquakes, and therefore, DMA will have to be interpreted to mean that such a scheme on ex-gratia was only recommendatory and not mandatory. The government’s affidavit also stated that an ex-gratia amount of Rs 4 lakh could not be paid for Covid-19 deaths as it was beyond fiscal affordability, and the finances of the central and state governments were under severe strain.

Emphasising that the beneficial provision of the legislation must be literally construed so as to fulfil the statutory purpose and not frustrate it, the bench noted that once Covid-19 had been notified as a disaster, it was mandatory to contemplate a scheme for ex-gratia payment for loss of life due to the infection.

“Not recommending any guidelines for ex-gratia assistance on account of loss of life due to Covid 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 ex-gratia assistance,” the bench said.

The bench also noted that there was no document on record to show that after a recommendation of the Finance Commission against a scheme for ex­gratia payments, there was any decision made by the PM-led NDMA, which was statutorily mandated to issue these guidelines. “Ex-gratia assistance on account of loss of life is part of minimum standards of relief, which must be considered by the National Authority while providing for the minimum standards of relief to be provided to the persons affected by disaster in the present case, Covid-19 pandemic,” the bench said.

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At the same time, the bench highlighted that the courts must draw a line when it comes to matters of financial implications and it was cognisant that Covid-19 was different from the other disasters/natural disasters for which ex-gratia assistance was provided.

No state or country had unlimited resources, said the bench, pointing out that the central government was also required to take various measures in different sectors, such as public health, employment and providing food and shelter to people and migrants.

“There shall not be any justification to provide for the same amount by way of ex-gratia assistance as provided in the case of other disasters/natural disasters, i.e., Rs 4 lakh. The government has to decide its own priorities and reliefs to different sectors for different reliefs… What reasonable amount to be offered towards ex-gratia aid is left to the wisdom of National Authority,” the bench said.

—By Abhinav Verma and India Legal News Service

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