REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 554 OF 2021

Reepak Kansal …Writ Petitioner

Versus

Union of India and others …Respondents

WITH

WRIT PETITION (CIVIL) NO. 539 OF 2021

Gaurav Kumar Bansal …Writ Petitioner

Versus

Union of India and others …Respondents

(With applications for interventions)

J U D G M E N T

M.R. SHAH, J.

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 provide exgratia 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 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 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 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 GauravKumar 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 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 behalf of the petitioner in Writ Petition (Civil) No. 554 of 2021 has submitted that admittedly Covid-19 is a “Notified Disaster” and therefore 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 (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) issue drevised 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 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”.

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. 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 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 issubmitted that the word “shall” occurring twice in Section 12 of the Act putsa constitutional and statutory obligation on the part of the Central/StateGovernment to recommend guidelines for providing ex gratia assistancewhich 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.

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”, assought to be canvassed on behalf of the Union of India, the concept of“situation interpretation” evolved would negate the 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 (para13) and Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Limited, (2005) 7SCC 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, altered or modified unlessit 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 “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 Abhiyanv. 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 v. Vardichan, (1980) 4 SCC162; 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 Central Government that the prayer of the petitioner for the payment of ex gratia compensation for loss of life dueto 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 of India.

3.7 It is further submitted by Shri Upadhyay, learned Senior 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 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 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 procedure for issuance of death certificate mentioning thecause 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 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 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 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 Section12 of the DMA 2005 shall be applicable and come into play.

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 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 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 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” 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 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 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 that Rs. 4 lacs shall be provided for ex gratia payment to the families of deceased persons. It is submitted that therefore the word “shall” used 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 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 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 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.

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 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 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 issubmitted 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 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 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 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 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 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.

 

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