Supreme Court of India
REEPAK KANSALversusUNION OF INDIA AND OTHERS
- Citation
- 2021 INSC 318
- Decided
- 30 June 2021
- Disposal
- Disposed off
- Bench
- ASHOK BHUSHAN
Holding
Section 12 of the Disaster Management Act, 2005 imposes a mandatory duty on the NDMA to recommend guidelines for ex gratia assistance, and the NDMA’s failure to do so warrants a writ of mandamus, though the amount of assistance is left to the NDMA’s discretion.
Summary
The petitioners sought mandatory ex gratia compensation for families of Covid‑19 victims under Section 12 of the Disaster Management Act, 2005, arguing that the word "shall" imposes a duty on the National Disaster Management Authority (NDMA) to prescribe uniform guidelines. The Union of India contended that "shall" should be read as "may", making the provision directory, and that the government must retain discretion over the amount and allocation of funds. The Court examined the plain meaning of "shall", the object and purpose of the Act, and the statutory duty of the NDMA, concluding that the provision is mandatory and the NDMA had failed to issue guidelines for ex gratia assistance. However, the Court held that it could not dictate a specific monetary amount, leaving that to the NDMA's wisdom and resource considerations. It also directed the issuance of simplified guidelines for death certificates stating "Death due to Covid‑19" and instructed the Union to act on the XVth Finance Commission recommendations. Consequently, the writ petitions were disposed of with specific directions to the NDMA, the appropriate authority, and the Union of India.
Issues considered
- The interpretation of the word "shall" in Section 12 of the Disaster Management Act, 2005 – whether it is mandatory or directory.
- Whether the NDMA has a statutory duty to recommend guidelines for ex gratia assistance for Covid‑19 deaths.
- Whether a writ of mandamus can be issued directing the Central/State Governments to pay a specific amount of ex gratia compensation.
- Whether the courts can direct the issuance of official death certificates stating the cause of death as Covid‑19.
Legislation cited
- Disaster Management Act, 2005s. 10, s. 12, s. 19, s. 2(d), s. 2(e), s. 2(i), s. 2(m), s. 46, s. 48, s. 6
- Registration of Births and Deaths Act, 1969
Subjects
ex gratia assistanceDisaster Management ActSection 12 interpretationmandamuspolicy decisiondeath certificateCovid‑19 pandemicstatutory dutyjudicial review
Judgment
920 [2021]REPORTS
SUPREME COURT 6 S.C.R. 920 [2021] 6 S.C.R.
A REEPAK KANSAL
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Civil) No. 554 of 2021)
B June 30, 2021
[ASHOK BHUSHAN AND M. R. SHAH, JJ.]
Covid-19 Pandemic: Disaster Management Act, 2005 – ss.12,
2(d), 2(e), 2(i), 2(m), 6, 10, 19, 46 and 48 – Prayer for directions to
National Disaster Management Authority (NDMA)/Central
C
Government/State Governments to provide ex gratia monetary
compensation to the families of the deceased persons who
succumbed to the pandemic of Covid-19, in view of s.12 of the Act
– Whether the word “shall” used in s.12 of the Act is to be interpreted
and considered as “shall” or “may” and whether it is “mandatory”
D or “directory/discretionary” for the National Disaster Management
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 – Held: To construe the
word “shall” as “may” and as directory/ discretionary, the very
object and purpose of the Act will be defeated – The word “shall”
E
used twice in s.12 significantly imposes a duty cast upon the National
Disaster Management 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 – Provisions of
F s.12 has to be applied to Covid-19 pandemic which is declared as
“notified disaster”/national disaster – National Disaster
Management Authority failed to perform its statutory duty cast u/
s.12 and therefore a writ of mandamus is to be issued – National
Disaster Management Authority directed to recommend guidelines
for ex gratia assistance on account of loss of life to the family
G
members of the persons who died due to Covid-19, as mandated u/
s.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
H – However, what reasonable amount to be offered towards ex gratia
920
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 921
assistance is left to the wisdom of National Disaster Management A
Authority.
Covid-19 Pandemic: Disaster Management Act, 2005 – ss.
12, 2(d), 2(e), 2(i), 2(m), 6, 10, 19, 46 and 48 – Prayer for directions
to National Disaster Management Authority (NDMA)/Central
Government/State Governments to provide ex gratia monetary B
compensation to the families of the deceased persons who
succumbed to the pandemic of Covid-19 – 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 C
amount by way of ex gratia assistance – Held: The Government should
be free to take policy decisions/decide priorities (of course to
achieve the ultimate 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, D
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 E
of life to the family members of the persons who have died due to
Covid-19 – Some States are paying ex gratia assistance to the family
members of the persons who have died due to Covid-19 pandemic –
However, the same is paid from the Chief Minister Relief Fund or
other relief funds, but not from State Disaster Response Fund (SDRF) F
– 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 s.12 of the Act – However, at the same time, it will always be
open for the concerned States to provide for ex gratia assistance G
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 H
922 SUPREME COURT REPORTS [2021] 6 S.C.R.
A account of loss of life to the family members of the persons who
have died due to Covid-19 pandemic, 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/
B
fund to be used for prevention, preparedness, mitigation, 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.
C
Covid-19 Pandemic: Disaster Management Act, 2005 –
ss. 2(d), 2(e), 2(i), 2(m), 6, 10, 12, 19, 46 and 48 – Prayer for
directions to the respondents/State Governments to fulfill their
obligation(s) to take care of victims of the calamity and their family
members – Held: The prayer is too vague – Even otherwise,
D 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 policy /
relief/relief package in general and the same shall be within the
E domain of policy decision and would have financial implications
also.
Covid-19 Pandemic: Disaster Management Act, 2005 –
ss. 2(d), 2(e), 2(i), 2(m), 6, 10, 12, 19, 46 and 48 – Prayer for
directions to respondents-State Governments to issue any official
document stating cause of death, to the family members of the
F
deceased who died due to Covid-19 – Held: 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
G 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 – The procedure
should be as simplified as it can be – Appropriate Authority directed
to issue simplified guidelines for issuance of Death Certificates/
H official document stating the exact cause of death, i.e., “Death due
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 923
to Covid-19”, to the family members of the deceased who died due A
to Covid-19 – 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. B
Covid-19 Pandemic: Disaster Management Act, 2005 – ss.
2(d), 2(e), 2(i), 2(m), 6, 10, 12, 19, 46 and 48 – Prayer for directions
to the respondents-Union of India and others to provide social
security and rehabilitation to the victims of Covid-19 – Held: From
the XVth Finance Commission Report, it appears that the Finance C
Commission in its report has already made recommendations of the
same and from the counter affidavit it appears that the Union
Government has been actively considering the same in consultation
with other stakeholders – Even otherwise, from the counter affidavit
filed on behalf of the Union of India, it appears that the Central D
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 E
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/ad-hoc/outsourced staff
requisitioned by States/Central Hospitals/ autonomous hospitals of
Central /States/Union Territories, AIIMS & Institute of National F
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 pre-mortem G
– 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 – The Union
of India to take appropriate steps on the recommendations made by
the Finance Commission in its XVth Finance Commission Report
H
924 SUPREME COURT REPORTS [2021] 6 S.C.R.
A bearing in mind paragraph 8.131 in consultation with other
stakeholders and experts.
Disaster Management Act, 2005: Enactment of – Object and
purpose – Discussed.
Administrative Law: Policy decision – Interference with –
B Scope – Held: When the Government forms its policy, it is based on
a number of circumstances, on facts, law including constraint based
governmental resources – The Government is entitled to make
pragmatic adjustments which may be called for by particular
circumstances – The function of the Court is to see that lawful
C 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 – Judicial Review.
D Judicial Review: Scope of – Writ of Mandamus – When can
be issued – Held: If the statutory authority/authority fails 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
E authority to perform its statutory duty/constitutional duty.
Interpretation of Statutes: Plain meaning – Held: When the
language of the provision is plain and unambiguous, statutory
enactments must ordinarily be construed according to its plain
meaning.
F
Interpretation of Statutes: Beneficial provision – Held: The
beneficial provision of the legislation must be literally construed so
as to fulfill the statutory purpose and not to frustrate it.
Disposing of the writ petitions and also all pending
interlocutory applications, the Court
G
HELD:1.1. In Section 12 of Disaster Management Act,
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
H
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 925
of DMA 2005 and the functions and powers of the National A
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
B
specifically provides that 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 C
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
D
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 E
beneficial provision of the legislation must be literally construed
so as to fulfil the statutory purpose and not to frustrate it. [Para
10.1][968-C-G]
1.2. Under Section 12 of Disaster Management Act, 2005,
the National Authority is mandated to recommend guidelines for F
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 account of loss of life as also assistance on account
of damage to houses and for restoration of means of livelihood G
therefore can be said to be part of minimum standards of relief of
which the National Authority is required to recommend guidelines.
[Para 10.2][968-H; 969-A-B]
H
926 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 1.3. 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.
[Para 10.3][969-B-C]
B
1.4. To construe the word “shall” as “may” and as directory/
discretionary, the very object and purpose of the Act will be
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
C 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
D 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
E 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
F 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
G the word “shall” should be construed as “may” as 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
H
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 927
Act is a disaster and once it is declared as a “notified disaster”/ A
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.
[Para 10.4][969-H; 970-A-F]
1.5. Nothing is on record that any decision/guidelines has/ B
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 C
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 D
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 E
relief to be provided to persons affected by disaster/Covid-19
pandemic as mandatory under Section 12 of DMA 2005.
[Para 10.4][970-G-H; 971-A-B]
2.1. It cannot be disputed that Covid-19 pandemic is a
peculiar disaster, which the country and the world has experienced F
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. There shall
not be any justification to provide for the same/similar amount by G
way of ex gratia assistance as provided in the case of other
disasters/natural disaster, i.e., Rs. 4 lacs. [Para 11.1][971-D-E;
972-B-C]
2.2. The Government however has to decide its own
priorities and reliefs to the different sectors/for different reliefs. H
928 SUPREME COURT REPORTS [2021] 6 S.C.R.
A The Government is also required to deal with the effect of the
pandemic on the economy. A huge amount is required to be spent
from the National Disaster Response Fund (NDRF) / State
Disaster Response Fund (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
B
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
C constraint based governmental resources. The Government is
entitled to make pragmatic adjustments which may be called for
by particular circumstances. 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
D
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 goal of DMA 2005, government should be free to
take its own decisions/priorities while providing minimum
E 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/
F
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
G Commission Report and the funds required for other reliefs/
priorities. The recommendations of the Finance commission
provide sufficient guidelines. However, at the same time, while
recommending guidelines for the minimum standards of relief to
be provided to persons affected by disaster/Covid-19 pandemic,
H
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 929
the authority has to consider issuing/recommend guidelines on A
ex gratia assistance on account of loss of life. 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
B
pandemic. [Para 12][972-C-H; 973-A-D]
2.3. 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 C
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 D
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. E
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, no writ of mandamus can be issued directing the
Central Government/State Governments to pay a particular sum/ F
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, 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 G
should be left to the National Authority/Central Government.
[Para 12.1][973-E-H; 974-A-B]
3. It is the duty of the every authority to issue accurate/
correct death certificates stating the correct and accurate cause
H
930 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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
B
specifically mentioned in the death certificate. The procedure
should be as simplified as it can be. 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 certificate stating the exact cause of death, i.e.,
C “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
D
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
E 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. [Para 13][974-C-E, F-H; 975-A]
4. In so far as the prayer to issue an appropriate direction
F 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
G directing the respondents – State Governments to declare a
particular policy /relief/relief package in general and the same
shall be within the domain of policy decision and would have
financial implications also. [Para 14][975-B-C]
H
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 931
5. Now so far as the relief sought to issue direction to the A
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
B
has been actively considering the same in consultation with other
stakeholders. 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 C
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/
D
volunteer/local urban bodies/contract/daily wage/ad-hoc/
outsourced staff requisitioned by States/Central Hospitals/
autonomous hospitals of Central /States/UnionTerritories, 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 E
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 pre-mortem. Thus, the Union
Government may look into the same and cover them also who
F
might have been left out and who can be said to be in direct contact
of dead bodies of Covid-19 patients. Even, the Solicitor General
has also stated at the Bar that the Union Government/appropriate
authority shall look into the same. [Para 15][975-D-E, F-H;
976-A-C]
6.1. The National Disaster Management Authority is G
directed 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 H
932 SUPREME COURT REPORTS [2021] 6 S.C.R.
A the guidelines already recommended for the minimum standards
of relief to be provided to persons affected by Covid-19.
However, what reasonable amount to be offered towards ex gratia
assistance is left to the wisdom of National Authority which may
consider determining the amount taking into consideration, such
as, requirement/availability of the fund under the NDRF/SDRF
B
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
C appropriate guidelines be recommended, as directed
hereinabove, within a period of six weeks. [Para 16][976-C-G]
6.2. 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
D 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 of the judgment 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
E authority, if they are not satisfied with the cause of death
mentioned in the death certificate/official document issued by the
appropriate authority. [Para 16][976-G-H; 977-A-B]
6.3. The Union of India to take appropriate steps on the
recommendations made by the Finance Commission in its XVth
F Finance Commission Report bearing in mind paragraph 8.131
in consultation with other stakeholders and experts.
[Para 16][977-B-C]
Small Scale Industrial Manufacturers Association
(Regd.) v. Union of India and others, 2021 (4) SCALE
G 415 – relied on.
DLF Universal Limited v. Director, Town and Country
Planning Department, Haryana (2010) 14 SCC 1 :
[2010] 15 SCR 85; Shin-Etsu Chemical Co. Ltd. v. Aksh
Optifibre Limited (2005) 7 SCC 234 : [2005] 2 Suppl.
H
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 933
SCR 699; Bhavnagar University v. Palitana Sugar Mill A
(P) Ltd. (2003) 2 SCC 111 : [2002] 4 Suppl. SCR 517;
Swaraj Abhiyan v. Union of India (2016) 7 SCC 498;
Municipal Council, Ratlam v. Vardichan (1980) 4 SCC
162 : [1981] 1 SCR 97; Khatri (2) v. State of Bihar
(1981) 1 SCC 627 : [1981] 2 SCR 408; Charan Lal
B
Sahu v. Union of India, (1990) 1 SCC 613; Samatha v.
State of A.P., (1997) 8 SCC 191; and Bachahan Devi v.
Nagar Nigam, Gorakhpur, (2008) 12 SCC 372 –
referred to.
Case Law Reference
C
[2010] 15 SCR 85 referred to Para 13
[2005] 2 Suppl. SCR 699 referred to Para 3.5
[2002] 4 Suppl. SCR 517 referred to Para 3.5
(2016) 7 SCC 498 referred to Para 3.6 D
[1981] 1 SCR 97 referred to Para 3.6
[1981] 2 SCR 408 referred to Para 3.6
(1990) 1 SCC 613 referred to Para 5.1
(1997) 8 SCC 191 referred to Para 5.1 E
(2008) 12 SCC 372 referred to Para 6
2021 (4) SCALE 415 relied on Para 7.2
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
554 Of 2021. F
(Under Article 32 Of The Constitution Of India)
With
Writ Petiton (Civil) No.539 Of 2021.
S.B. Upadhyay, Sr. Adv., Reepak Kansal, Yadunandan Bansal, G
Ms. Ruhi Gupta, Harisha S.R., Advs. for the petitioner.
Tushar Mehta, S.G., Ms. Aishwarya Bhati, K.M. Nataraj, ASGs.,
Rajat Nair, Amit Sharma, Sughosh Subramanian, B.V. Balaram Das,
Chirag M Shroff, Dr. Monika Gusain, D. Kumanan, Rahul Joshi, Sumeer
Sodhi, Varun Tankha, Hussain Ali, Siddhant Gupta, Anand S. Jondhale, H
934 SUPREME COURT REPORTS [2021] 6 S.C.R.
A Yashoda Jondhale, Abdul Qadir, Sunil Prem Lalla, Satish Pandey, Advs.
for the Respondents.
Petitioner-in-person.
The Judgment of the Court was delivered by
M. R. SHAH, J.
B
1. The applications for interventions are allowed in terms of the
prayer made and the applicants are permitted to intervene in the present
proceedings.
2. These two writ petitions have been filed in Public Interest
seeking directions to the respondents – Central/State Governments to
C 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
D 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
E 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 Covid-19.
Two applications have been filed in the aforesaid writ petitions by
intervenors – family members who have lost their family members due
F 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 Petition (Civil) No. 539 of 2021. Shri Sumeer Sodhi and
Shri Anand S. Jondhale, learned Advocates have appeared on behalf of
G 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
H behalf of the petitioner in Writ Petition (Civil) No. 554 of 2021 has
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 935
[M. R. SHAH, J.]
submitted that admittedly Covid-19 is a “Notified Disaster” and therefore A
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
B
(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 C
other reliefs. It is submitted therefore on the same line and applying the
same criteria, the family members of those 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”.
D
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. E
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 F
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 G
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 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. H
936 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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
B 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
C 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,
D altered or modified unless it is plainly necessary to do so to prevent a
provision from being unintelligible, absurd, unreasonable, unworkable or
totally irreconcilable 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
E “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
F
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
G 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
H of India.
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 937
[M. R. SHAH, J.]
3.7 It is further submitted by Shri Upadhyay, learned Senior A
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 B
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 C
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 D
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 appeared as Party in Person, in addition, has further submitted that E
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 F
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 G
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. H
938 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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 further classified its Natural Hazards and Biological
Natural Hazards has been included as “Disaster”. It is submitted that
B
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
C 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
D 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”
E 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 account of loss of life. It is submitted that
F 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
G 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
H that Rs. 4 lacs shall be provided for ex gratia payment to the families of
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 939
[M. R. SHAH, J.]
deceased persons. It is submitted that therefore the word “shall” used A
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 B
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.
It is submitted that granting ex gratia for one disaster (like C
earthquake, floods, cyclones etc.) while denying the same to other disaster
(like Covid-19) 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 D
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.
E
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 F
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 also lost the sole bread earner who was nurturing G
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 H
940 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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
B 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
C 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 term itself gives a substantial proof of the existence of
social welfare responsibilities of the government. It is submitted that
D 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
E 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
F “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).
G 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 compensation to all deceased persons who have
died due to Covid-19, is beyond their fiscal affordability cannot be allowed
H as a ground for escape. It is submitted that if the Government is allowed
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 941
[M. R. SHAH, J.]
to claim fiscal inability as a ground to get away from its constitutional A
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 B
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 C
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 D
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.
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 E
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- F
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. G
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 H
942 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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 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
B
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
C
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
D 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
E 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, restoration, mitigation and reconstruction, in a very
short time, to include, inter-alia:
a) Testing, tracing, treatment and quarantine facilities;
F 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
G 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;
H
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 943
[M. R. SHAH, J.]
g) Minimising the adverse impact of large-scale economic A
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 B
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 C
of “interim measures of relief” are to be provided, as generally it is not
difficult to deal with such disasters which do not require 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.
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. D
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 E
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 F
population suffering from the disaster in mind, broadening its own vision,
providing for a multi-thronged 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 G
“Minimum Standards of Relief” under Section 12, has already taken
several steps providing for substantial and speedy measures by way of
increase in the 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. H
944 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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
B 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
C 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
D the fund of not only NDRF but even from the Consolidated Fund of
India is being spent. It is submitted that this is an on-going 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:
T Y P E O F H E A L T H F A C IL IT I E S B A S E L IN E C U R RE N T N O O F F O LD
E STA TU S INC REASE
C a t I . C OV ID de d ic a te d ho sp ita ls 16 3 4 09 6 2 5 - fo ld i nc r ea s e
C a t I I. D e dic a te d C O V ID H e a lth C e n te r 0 7, 92 9
C a t I II . De d ic a te d C O V I D C a re C e n tre 0 9, 95 4
O x yge n sup p o r te d be d s 50 , 58 3 3, 8 1, 75 8 7. 5 -f ol d inc r e a se
T ota l is ola tio n be d s ( e xc lu din g IC U 41 ,00 0 17 ,17 ,22 7 4 2- fo ld i nc r ea s e
b e ds)
T ota l I C U be d s 2, 50 0 1, 1 3, 03 5 4 5- fo ld i nc r ea s e
F I sol at ion r a ilw a y c o ac h e s 0
A UG M E N T A T I O N O F H E A L T H W O R K F O R C E
5, 60 1
M or e tha n 1 50 ,0 0 0 he a lth p e rs on ne l e ng ag e d ( 7, 02 4 M O s, 3 , 68 0 S pe c ia list s, 3 5, 99 6 S ta f f
N u rs es , 18 ,64 9 NH W s, 1 ,0 1, 1 55 c om m u ni ty v olu n te er s, A c c r e dite d S o c ia l H e a lth A ct ivist
( A S H A ) ’ s a nd A S H A F a c ilita to rs , 4 845 3 o the r sup po rt s taf f s) .
I N S U R A NC E C O V E R A G E F O R H E A LTH W OR K ER S
I nsu r a nc e c ov er a ge to 2 2. 1 2 la kh s he a lth wo r ke r s inc lu din g A S H A s f igh ting C O V ID - 19 .
IN C R E A S E IN T E S T IN G C A P A C IT Y
G 2 ,6 21 te stin g la bs ( 1 ,2 66 G o ve r n m e nt a nd 1, 35 5 P r iva te )
P h e no m e na l in c re a se in te s ting c a p a ci ty: 30 , 00 0 te sts/d a y in A p ril ’2 0 in cr e a se d to a
h igh o f 2 2 la kh s te sts /da y.
C u m u la tive – o ve r 3 6 . 1 c ro re te sts c o nd uc te d f o r C O V I D -1 9.
I N C R E A S E IN S U R V E IL L A N C E
S c r e e nin g a t all p or t of e ntr y/e x it, S t ate /D is tric t r a pid r e sp on se te a m s.
C o nt ac t tr a c in g th r ou gh e x te nsi v e ne tw o rk o f f r on tline h e a lth wo r ke r s.
H S ta te /c ity -sp e c if ic s er o -su r ve illa n c e st udi es t o e stim a te a nd m o nito r tr e nd s.
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 945
[M. R. SHAH, J.]
6.7 It is submitted that the due to the peculiar nature of the COVID- A
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
B
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 C
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; D
(2) In order to supplement the efforts of the State Governments,
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 providing limited
assistance towards containment measures under SDRF, E
(i) Measures for quarantine for sample collection and
screening
(ii) Procurement of essential equipments/ labs for
response to COVID-19.
F
(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.
G
(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. H
946 SUPREME COURT REPORTS [2021] 6 S.C.R.
A (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.
B
(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 one-time special dispensation,
for COVID-19 containment measures during 2020-
21.
C (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
D 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
E
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)
F 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
G a huge burden on the overall economy of the nation and 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
H decided to vaccinate the people of India as the most reliable preventive
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 947
[M. R. SHAH, J.]
measure. To achieve this goal by the end of this year, the Government A
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 B
are as under:
F.Y. BUDGET REVISED RELEASE
ESTIMATE (B.E.) ESTIMATE (R.E.)
2018-19 25,154.61 26,118.05 26,027.62
2019-20 27,989.00 28,783.60 28,168.81 C
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 D
and above their 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 E
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:
F
FINANCIAL SUPPORT UNDER EMERGENCY COVID RELIEF PACKAGE
S. Programme Approved Budget Actual Expenditure
No. (Dec.’ 2020) (as on 2nd Jun 21)
(in Rs. crores)
(in Rs. crores) (%)
1 National Health Mission 8,310 7580.14 91.2
2 Indian Council for Medical 2,475 1275.00 51.5 G
Research
3 National Centre for Disease 95 74.10 78.0
Control
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
H
948 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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 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,
B
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
C 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
D
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
E 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,
477 claims of healthcare workers under the scheme have already been
given the benefits, and further 344 claims of healthcare workers are
F
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,
G 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
H Commissions, after considering all the facets of disaster risk management,
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 949
[M. R. SHAH, J.]
have recommended the expenditure for providing financial relief against A
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
B
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 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 C
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
D
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, E
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 F
contemplated under the National Disaster Management Act, 2005.
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 G
‘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 H
950 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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
B “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 ‘ex-gratia’ assistance on account of loss of life, the guidelines
C 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
D Governments for inclusion of a number of calamities under the eligible
list of disasters under 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
E
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
F 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
G 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
H zones, COVID-19 care centres.
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 951
[M. R. SHAH, J.]
6.18 It is further submitted that, ex-gratia payment under SDRF/ A
NDRF guidelines issued under section 46(2) of the Disaster Management
Act, 2005 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
B
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 C
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 Covid-19. In this D
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 E
16.2 Synchronising Relief Assistance with Crop Insurance
16.3 Risk Pool for Infrastructure Protection and Recovery
16.4 Access to International Reinsurance for Outlier Hazard
Events
F
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 G
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 H
952 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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.
B
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 moving ahead. However, the insurance coverage
being deliberated does not cover risk insurance from pandemics or
C 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
D 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),
E 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
F 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
G 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 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
H for penal consequences.
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 953
[M. R. SHAH, J.]
6.20.1 It is submitted that the broad guidelines for appropriate A
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
B
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 C
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. D
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 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. E
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
COVID-19 as per two emergency codes created by World Health F
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. G
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’.
H
954 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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 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-
B
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),
C 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.
D
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
E 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 decision of this Court in
F 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
G 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
H pandemic of Covid-19, in view of Section 12 of DMA 2005;
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 955
[M. R. SHAH, J.]
ii) to direct the respondents/State Governments to fulfill their A
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 B
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 C
may also affect 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 D
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 E
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: F
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. G
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;
H
956 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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
B 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 or strait-jacket formula and this particularly
true in case of legislation dealing with economic matters.
C
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):
D
“…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
E 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
F entitled to make pragmatic adjustments which may be called 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
G 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
H
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 957
[M. R. SHAH, J.]
words, it is not for the courts to consider relative merits of different A
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 B
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 InvestmentCo.
Ltd. v. RBI, (1992) 2 SCC 343, it is observed and held by this C
Court that thefunction 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 D
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 differ. Courts cannot be expected to decide them E
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 F
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 G
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:
H
958 SUPREME COURT REPORTS [2021] 6 S.C.R.
A “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 policy-making process and the courts are ill- equipped
to adjudicate on a policy decision so undertaken. The court, no
B
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
C duties or functions. The courts cannot run the Government nor
can the administration indulge in abuse or non-use 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
D 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
E 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:
F
“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
G decide them without even the aid of experts.”
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
H
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 959
[M. R. SHAH, J.]
Government would take diverse factors for formulating the policy A
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 B
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 C
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. D
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. E
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 F
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 G
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. H
960 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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
B
of migrants etc. and therefore, as such, the government has
announced various financial packages/reliefs. Even the
government also suffered due to lockdown, due to unprecedented
covid-19 pandemic and also even lost the revenue in the form of
GST. Still, the Government seems to have come out with various
C 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
D 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
E 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
F 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
G 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
H has failed to perform its statutory duty cast under the statute or
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 961
[M. R. SHAH, J.]
constitutional duty, a mandamus can be issued directing the authority to A
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.
8. The reliefs sought in the present petitions are required to be
considered in the light of the observations made hereinabove on the B
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 C
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 D
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;
E
(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. F
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 persons affected by disaster, which shall include ex gratia
assistance on account of loss of life… [Section 12(iii)]. G
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 H
962 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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
B
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 Covid-
19, a conscious decision has been taken by the Finance Commission
C 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.
9. While appreciating the submission on behalf of the Union of
D 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.
E 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
F 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
G 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
H Response Force and setting up the National Institute of Disaster
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 963
[M. R. SHAH, J.]
Management. It also further provides for the constitution of the National A
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 B
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 C
sub-section (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
D
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 E
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 F
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 G
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; H
964 SUPREME COURT REPORTS [2021] 6 S.C.R.
A (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 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
B 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
C 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
D 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
E 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
F in sub-section (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;
G
(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;
H
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 965
[M. R. SHAH, J.]
(e) provide necessary technical assistance to the State A
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 B
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; C
(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 D
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, E
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 F
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 G
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
H
966 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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
B 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.”
C 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
D 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, —
E (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
F 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
G 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
H
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 967
[M. R. SHAH, J.]
with the National Authority. Over and above the NDRF, the Central A
Government 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
B
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, C
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:
D
(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 E
or consequences;
(iii) capacity-building;
(iv) preparedness to deal with any disaster;
(v) prompt response to any threatening disaster situation or
F
disaster;
(vi) assessing the severity or magnitude of effects of any
disaster;
(vii) evacuation, rescue and relief;
(viii) rehabilitation and reconstruction G
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. H
968 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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
B
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
C 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
D funds for the purpose of mitigation. Section 12 specifically provides that
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;
E 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
F 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
G 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.
H Then what is somewhat intended by the legislature while providing
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 969
[M. R. SHAH, J.]
minimum standards of relief is to be gathered from Section 12 itself. Ex A
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
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 B
(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: C
“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 D
“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 E
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 F
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 G
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
defeated. The word “shall” used twice in Section 12 significantly imposes H
970 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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
B 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-
C 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
D 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
E 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
F 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
G 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
H recommending any
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 971
[M. R. SHAH, J.]
Guidelines for ex gratia assistance on account of loss of life due A
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
B
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
C
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? D
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 E
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.
F
Looking to its peculiarity and the impact and effect, the Covid-19
pandemic is required to be viewed differently from other 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 G
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.
H
972 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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
B
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.
C
12. As observed hereinabove, the Government has to decide its
own priorities and reliefs to the different sectors/for different reliefs.
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 to migrants etc. The Government
D 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
E
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
F 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.
G 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 goal of DMA 2005, government should be free to
take its own decisions/priorities while providing minimum standards of
H
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 973
[M. R. SHAH, J.]
relief and even towards preparedness, mitigation, prevention and A
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
B
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 C
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
D
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.
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 E
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 F
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 G
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 H
974 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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, recovery etc. Therefore, what amount to be paid by way of
B
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
C
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
D 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.
E 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
F
Government and/or appropriate authority for issuance of an official
document/death 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
G 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
H
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 975
[M. R. SHAH, J.]
to Covid-19 has/have any grievance that in the death certificate/official A
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 B
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 policy/relief/relief package in general and the C
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 D
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 E
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 F
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 G
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/ad-hoc/outsourced staff
requisitioned by States/Central Hospitals/autonomous hospitals of Central/
States/Union Territories, AIIMS & Institute of National Importance (INI)/ H
976 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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
B
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
C 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
D 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
E reasonable amount to 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
F 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
G 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
H to Covid-19”, to the family members of the deceased who
REEPAK KANSAL v. UNION OF INDIA AND OTHERS 977
[M. R. SHAH, J.]
died due to Covid-19. While issuing such guidelines, the A
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
B
with the cause of death mentioned in the death certificate/
official document issued by the appropriate authority; and
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. C
17. As a sequel to the above, all pending interlocutory applications
also stand disposed of.
Devika Gujral Writ Petitions disposed of. D
E
F
G
H
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