By: Nidhi Saroj* |
“COVID-19 pandemic is a peculiar disaster… which the country and the world have experienced in a long time… Its extreme spread and impact require an approach different from the one that is applied to other disasters/natural disasters,”
- Supreme Court
COVID-19 is what we have all been talking about over the last one and half years for it has adversely affected the world and is being considered as the worst tragedy to hit the globe. Officially, more than 4 lakh people in India have lost their lives to this deadly pandemic. Governments across the world are facing difficulties in helping their citizens to survive this fight and to determine the best and most optimal way of utilising the resources. A lot of schemes have been introduced by the Indian Government to tackle the consequences of this pandemic, but till now there has been no announcement for providing compensation to the families who have lost their family members to COVID-19. Therefore, petitions were filed in the Apex Court to issue direction to Central Government for payment of ex-gratia compensation to the victim families.
In Latin, “ex gratia” indicates “by favour, it comes from the word grace. When something has been done ex gratia, it has been done voluntarily, out of kindness or grace. In law, an ex gratia payment is a payment made without the giver recognising any liability or legal obligation.
A division bench of the Supreme Court comprising of Justice Ashok Bhushan and Justice M.R.Shah on 30.06.2021 delivered a common judgement on the two writ petitions Reepak Kansal vs Union of India and Gaurav Kumar Bansal vs Union of India filed before it. In this Judgement, the Supreme Court has directed the Central Government to frame guidelines on providing compensation to the families of victims who lost their lives to the global pandemic of COVID-19 under section 12(iii) of the Disaster Management Act, 2005. This compensation may also be understood as ex-gratia compensation on account of loss of life. It is, therefore, imperative to understand the relevant provisions under which the Supreme Court has directed the Central Government to frame the guidelines, the arguments of the petitioners to impose this obligation on the Government, the contentions of the Government for seeking exemption from this liability and predominantly the long-term consequences of this judgement of the Supreme Court.
These two writ petitions were filed in the Supreme Court with prayers to issue directions to the Central and State Government on the following issues - (Paragraph 2 of the Judgement)
To provide ex-gratia monetary compensation of Rs. 4 lacs or notified ex -gratia monetary compensation under section 12 of the Disaster Management Act, 2005 to the families of the deceased who have succumbed to the pandemic of COVID-19
To simplify the procedural requirements of receiving death certificates for the victims of the pandemic.
To provide social security and rehabilitation to the victims of the pandemic.
The petitioners contended that since COVID-19 is a notified disaster since March 14, 2020, and it also fulfils the pigeon-hole requirement of the definition of disaster as given under section 2(d) of the Disaster Management Act, 2005 therefore, the provisions of the Disaster Management Act, 2005 shall apply and hence, it is a statutory obligation under section 12(iii) of the National Disaster Management Authority (NDMA) established under section 3 of the Disaster Management Act, 2005, an organ of the Central Government headed by the Prime Minister, to recommend guidelines for the minimum standards of relief to be provided to persons affected by the disaster and including ex-gratia assistance on account of loss of life. Furthermore, the petitioners contended that it is not just a statutory obligation of the Government but, also a Constitutional obligation under Article 21 of the Constitution and further, the Government should not be allowed to seek financial capability and affordability as a ground of exemption from this statutory and constitutional obligation.
The Government on the other hand contended that the issue is not that of fiscal affordability, but rather of the most rational, judicious, and optimum usage of fiscal and all other resources of the nation. Further, it was contended that by the government that the government has already made various plans and taking comprehensive measures to alleviate the effects of the pandemic, for which the Government is not only using the National Disaster Response Fund (NDRF) as per Section 46(1)(b) of the Disaster Management (DM) Act, 2005 and State Disaster Response Funds (SDRF) but, also the Consolidated Fund of India. The Government also contended on the nature of the unprecedented pandemic of COVID- 19 and claimed that while enacting the Disaster Management Act, 2005 the intention of the legislature was not focused on a disaster like the COVID-19 for its impact is very different from other disasters like Tsunami, Earthquake, Flood, etc. It is not a short-term disaster, its impact is going to be there for many years in the future and therefore, unlike other disasters, this disaster requires day-to-day expenditure, day-to-day monitoring, day-to-day change in priorities, and day-to-day change in the methods and modalities to deal with the same. The nature of this disaster is different and peculiar and hence, there should not be a strict application of the Disaster Management Act, 2005 in this situation. Further, it was argued that the Government has already taken several measures to curb the impact of this deadly pandemic like vaccination drive, health facilities and the Government’s current plan of action is to focus on health, supply of oxygen, food, medical care, and boosting the economy. The Government also contended that section 12(iii) of the Disaster Management Act, 2005 is a recommendation and not mandatory, the Government has complied with all the other provisions of the Disaster Management Act, 2005 like supplementing State Governments in dealing with migrant labourer problems through SDRF, Funding under National Health Mission, insurance policies of health workers under the Pradhan Mantri Garib Kalyan Package (PMGKP) which provides a comprehensive personal accident cover of Rs. 50 Lacs to 22.12 Lac 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. The financing of the SDRF and NDRF is utilised as per the directions of the Finance Commission established under Article 280 of the Constitution and as per these recommendations the focus of the Government should be on utilizing all the financial, human, and infrastructural resources of the nation, rationally and judiciously and due to unprecedented effects and 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. The Government also claimed that they have timely issued guidelines on Minimum standard relief and as far as ex-gratia compensation on account of life is concerned various State Governments like Bihar, Karnataka, Delhi, etc. have already announced compensation for the victim families.
The court rejected the arguments of the Government and held that the use of the word shall under section 12(iii) of Disaster Management Act, 2005 makes it a mandatory obligation on the Central Government to issue minimum standard relief of ex-gratia compensation on account of loss of life. The Court further held that the government’s arguments “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 Disaster Management Act 2005 shall be applicable and is mandatory to be complied with. The Court, however, refused to fix the compensation amount and rejected the argument of the petitioner to fix it at Rs. 4 Lakhs. The Court left it at the discretion of the Government to fix the amount depending on its other priorities as the dispensation of a fund depends on a number of circumstances. The Court further held that few states like Bihar, Karnataka, and Delhi are already paying ex-gratia compensation on account of loss of life but, it should not affect the obligation of the Central Government, both the reliefs may be concurrently provided to the victims. The Court on the issue of death certificate held that it is the duty of the authorities to mention the cause of death as COVID-19 if a person is dying due to the same and the procedure to receive the same should be simplified as much as possible and finally, the Court directed the Central Government to abide by all the recommendations made by the XV Finance Commission on providing relief to the victims of the pandemic.
The decision of the Supreme Court is being welcomed though I feel that considering the peculiar nature of the pandemic the utilisation and division of resources particularly the financial resources should be left at the discretion of the Government and Finance Commission and a strict interpretation to the Disaster Management Act, 2005 should not be adopted by the Court in a situation like this. The Disaster Management Act, 2005 was not enacted to curb the effects of a public health crisis like this. On one hand, Supreme Court has directed the Central Government to act as per the directions of the XV Finance Commission and on the other hand, it has rejected the plea of the Government that they are not framing ex-gratia guidelines as per the recommendation of the Finance Commission. Furthermore, it was already argued by the Government and accepted by the Court that COVID-19 is a disaster of peculiar and unprecedented nature, its impact is also different from other disasters and the resources used for its mitigation should be used judiciously. In light of the same one may question the direction of the Supreme Court which mandates the Central Government to frame guidelines on ex-gratia compensation on account of loss of life and argue that it should have been left with the local governments to decide. Local Governments cannot frame uniform guidelines but the victims may receive the requisite compensation, obliging the Central Government may lead to more complex problems as the nature of the disaster is peculiar and dynamic and one cannot predict what may be the next situation of dearth. The issue of ex-gratia compensation on account of loss of life is not settled here, there will be more issues when after the Government issues the guidelines and the compensation scheme and amount.
* The author is an Assistant Professor at the SOLS, CMRU, Bangalore. She is currently pursuing Ph.D. from Gujarat National Law University on the intersection of Criminal Justice and Juvenile Justice Laws.