Supreme Court reserves judgement on ex-gratia payment for COVID victims

Supreme Court reserves judgement on ex-gratia payment for COVID victims

Government clarifies that funds are not the issue but how to utilise the funds is the larger question

The Supreme Court of India Monday reserved its judgment on the contentious issue of monetary compensation to the family members of COVID-19 victims.

A vacation bench of Justices Ashok Bhushan and M.R. Shah while reserving judgment sought to know from the Government of India whether the National Disaster Management Authority (NDMA) had considered the prayer for making such ex-gratia payments and rejected the same.

A petition filed by advocates Gaurav Kumar Bansal and Reepak Kansal has sought 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.

Solicitor General Tushar Mehta informed the Apex Court that funds were not the real issue but the larger question was how best to utilize the available funds.

The petition referred to Section 12 of the Disaster Management Act 2005, which mentions that the 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 due to limits to the government resources. It also clarified that the entire amount of the State Disaster Relief Fund will end up being utilized if such payments were made.

The government in its reply filed through an affidavit said that under Section 12 of the Disaster Management Act (DMA), it is the "National Authority" which is empowered to recommend guidelines for the minimum standards of relief, including ex-gratia assistance. It is a function entrusted to the authority by the law passed by the Parliament, the affidavit informed.

"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 stated.

Senior Advocate S.B. Upadhyay appearing for the petitioners argued that financial constraints could not be used to evade constitutional obligations.

"All schemes by the government is respected. The question that arises is if the statute provides consideration, can financial constraint be a ground to not meet constitutional obligations? In Swaraj Abhiyan case it was held financial constraint will not come in way of meeting constitutional obligations. The ex-gratia scheme has to be extended for 2021 too. The Disaster Management Act itself says so. They say in Section 12, the word shall be read as 'May'," Upadhyay argued.

Solicitor General Mehta placed reliance on Finance Commission's five-year plan report to contend that the insurance scheme would be the best way to handle a pandemic in future.

"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," Mehta informed the Top Court.

"It may guide you to determine amount of compensation but where is the decision by the NDMA (under Section 12)," the SC bench asked.

Advocate Sumeer Sodhi, who appeared on behalf of certain interveners, submitted that there should be a uniform policy by States since Bihar was giving Rs 4 lakh compensation while some other state was offering only Rs. 1 lakh.

The Solicitor General informed the Court that it was not the case of the government that it did not have funds, but the question is on how to utilize the available funds.

"It is not the case of government that we don't have money. Our focus on expenditure of the money is on a holistic solution. We are focussing on aspects like food security, etc," Mehta said.

The Court also wanted to know if the process of issuing death certificates cab be simplified. "Prima facie we find that it is more complicated… Can't this process be simplified? (For) those persons who have already been issued death certificate but COVID was not mentioned then what remedy is for them? Can't you issue such certificate on production of COVID positive certificate," Justice Shah asked.

The government promised to look into the issue and find a solution to same.