[BREAKING] Supreme Court orders NDMA to frame guidelines for paying ex gratia compensation to families of persons who succumbed to Covid-19

The Supreme Court on Wednesday ordered the National Disaster Management Authority (NDMA) to form guidelines for payment of ex gratia compensation to family members of persons who succumbed to Covid-19.

The Court left it to the wisdom of the NDMA to decide on the amount to be so provided as ex gratia assistance.

The guidelines have to be put in place within 6 months, the Court 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 wisdom of national authority," the judgment stated.

Pertinently, the top court held that that the mandate under Section 12 of the Disaster Management Act to lay down guidelines for minimum standards of relief including payment of ex gratia assistance, is mandatory and not discretionary.

In failing to do so, the National Authority has failed to perform its job under Section 12 of the act, the Court said.

"Once it is held that 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 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," the judgment said.

The Court also said that death certificates issued should have the date and cause of death (as COVID).

There will be also facility for correcting the cause of death if family is not satisfied, the Court added.

"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," the Court ordered.

A Bench of Justices Ashok Bhushan and MR Shah delivered the judgment on a plea seeking directions to the Central and State governments to provide ex-gratia compensation of Rs. 4 lakh to the family members of those who have succumbed to the COVID-19 disease and post COVID complications including mucormycosis.

The Court while reserving judgment had sought to know from the Central government on whether the National Disaster Management Authority (NDMA) had considered the prayer for payment of such ex-gratia payments and rejected the same.

The petition by advocates Gaurav Kumar Bansal and Reepak Kansal had referred to Section 12 of the Disaster Management Act 2005, which said that national authority shall recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster, which shall include ex-gratia assistance.

Ministry of Home Affairs (MHA) had informed Supreme Court that giving an ex gratia payment of Rs. 4 lakh to kin of each COVID-19 deceased would not be possible as "resources of the government have limits" and entire amount of State Disaster Relief Fund will end up being utilised for such payments, if such payments are made.

Regarding Section 12 of DMA, the reply affidavit filed by the Central government had said that it is the “National Authority” which is empowered to recommend guidelines for the minimum standards of relief, including ex-gratia assistance and thus it is a "function entrusted to the authority by the law passed by the Parliament."

"It is well settled through numerous judgements of the Supreme Court that this is a matter which should be performed by the authority, to whom it has been entrusted and not one where the Court will substitute its own judgement for the decision to be taken by the Executive. Any attempt to second guess may create unintended and unfortunate Constitutional and administrative ramifications," the affidavit said.

Senior Advocate SB Upadhyay, arguing for the petitioners, had stated that financial constraints cannot be used to evade constitutional obligations.

Solicitor General Tushar Mehta, representing the Central government, had placed reliance on Finance Commission's 5 year plan report to contend that insurance scheme would be the best way to handle a pandemic which occurs every 10 or 100 years.

However, the SG had conceded that "Finance Commission recommendations cannot override a statutory obligation and thus Section 12 cannot be nullified. Finance commission says how mitigation needs to be done and thus amounts are earmarked. If the plea succeeds then allocation has to change."

[Read judgment]