REEPAK KANSAL versus UNION OF INDIA AND OTHERS on 30 June 2021

920

[2021] 6 S.C.R. 920

SUPREME COURT REPORTS

[2021] 6 S.C.R.

REEPAK KANSAL

A

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 toNational Disaster Management Authority (NDMA)/CentralCGovernment/State Governments to provide ex gratia monetarycompensation to the families of the deceased persons whosuccumbed 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 interpretedand considered as “shall” or “may” and whether it is “mandatory”Dor “directory/discretionary” for the National Disaster ManagementAuthority to recommend guidelines for the minimum standards ofrelief to be provided to persons affected by disasters including exgratia assistance on account of loss of life – Held: To construe theword “shall” as “may” and as directory/ discretionary, the veryobject and purpose of the Act will be defeated – The word “shall”Eused twice in s.12 significantly imposes a duty cast upon the NationalDisaster Management Authority to issue guidelines for the minimumstandards of relief which shall include ex gratia assistance onaccount of loss of life as also assistance on account of damage tohouses and for restoration of means of livelihood – Provisions ofFs.12 has to be applied to Covid-19 pandemic which is declared as“notified disaster”/national disaster – National DisasterManagement Authority failed to perform its statutory duty cast u/s.12 and therefore a writ of mandamus is to be issued – NationalDisaster Management Authority directed to recommend guidelinesfor ex gratia assistance on account of loss of life to the familyGmembers 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 beprovided to the persons affected by disaster-Covid 19 Pandemic,over and above the guidelines already recommended for the minimumstandards of relief to be provided to persons affected by Covid-19H– However, what reasonable amount to be offered towards ex gratia assistance is left to the wisdom of National Disaster ManagementAuthority.

assistance is left to the wisdom of National Disaster ManagementAuthority.

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 directionsto National Disaster Management Authority (NDMA)/CentralGovernment/State Governments to provide ex gratia monetarycompensation to the families of the deceased persons whosuccumbed to the pandemic of Covid-19 – Whether a writ ofmandamus can be issued directing the Central Government/NationalAuthority/State Governments to pay a particular amount by way ofex gratia assistance, more particularly Rs. 4 lacs, as prayed by thepetitioners – Whether the Court can/may direct to pay a particularamount by way of ex gratia assistance – Held: The Government shouldbe free to take policy decisions/decide priorities (of course toachieve the ultimate goal of DMA 2005, government should be freeto take its own decisions/priorities while providing minimumstandards 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 aidand advice of the experts and looking to the circumstances fromtime to time – Therefore, no relief can be granted to direct theNational Authority/Central Government/State Governments to paya particular amount towards ex gratia assistance on account of lossof life to the family members of the persons who have died due toCovid-19 – Some States are paying ex gratia assistance to the familymembers of the persons who have died due to Covid-19 pandemic –However, the same is paid from the Chief Minister Relief Fund orother relief funds, but not from State Disaster Response Fund (SDRF)– To avoid any heart-burning and discriminatory treatment, it wouldbe appropriate for the National Authority to recommend uniformguidelines while providing for the minimum standards of relief inthe form of ex gratia assistance on account of loss of life, as mandatedunder s.12 of the Act – However, at the same time, it will always beopen for the concerned States to provide for ex gratia assistanceon account of loss of life and other reliefs from their own relieffunds (other than SDRF) as it would be a policy decision by theconcerned States and they may provide such other relief/reliefs,looking to the availability of the fund – However, merely becausesome States might have been paying the ex gratia assistance on AB

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Aaccount of loss of life to the family members of the persons whohave died due to Covid-19 pandemic, no writ of mandamus can beissued directing the Central Government/State Governments to paya particular sum/amount by way of ex gratia assistance as theutilization of the fund/money by the Central Government woulddepend upon the priorities fixed by them which includes the money/Bfund to be used for prevention, preparedness, mitigation, recoveryetc. – Therefore, what amount to be paid by way of ex gratiaassistance to the family members of the persons who died due toCovid-19 pandemic should be left to the National Authority/CentralGovernment.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 fordirections to the respondents/State Governments to fulfill theirobligation(s) to take care of victims of the calamity and their familymembers – Held: The prayer is too vague – Even otherwise,Dconsidering the counter affidavit filed on behalf of the Union ofIndia it demonstrates the various reliefs declared by the UnionGovernment – As such, no mandamus can be issued directing therespondents – State Governments to declare a particular policy /relief/relief package in general and the same shall be within theEdomain of policy decision and would have financial implicationsalso.

Covid-19 Pandemic: Disaster Management Act, 2005 –ss. 2(d), 2(e), 2(i), 2(m), 6, 10, 12, 19, 46 and 48 – Prayer fordirections to respondents-State Governments to issue any officialdocument stating cause of death, to the family members of theFdeceased who died due to Covid-19 – Held: It is the duty of theevery authority to issue accurate/correct death certificates statingthe correct and accurate cause of death, so that the family membersof the deceased who died due to Covid-19 may not face any difficultyin getting the benefits of the schemes that may be declared by theGGovernment 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 shouldbe specifically mentioned in the death certificate – The procedureshould be as simplified as it can be – Appropriate Authority directedto issue simplified guidelines for issuance of Death Certificates/Hofficial document stating the exact cause of death, i.e., “Death due to Covid-19”, to the family members of the deceased who died dueto Covid-19 – Such guidelines may also provide the remedy to thefamily members of the deceased who died due to Covid-19 forcorrection of the death certificate/official document issued by theappropriate authority, if they are not satisfied with the cause ofdeath mentioned in the death certificate/official document issuedby the appropriate authority.

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 directionsto the respondents-Union of India and others to provide socialsecurity and rehabilitation to the victims of Covid-19 – Held: Fromthe XVth Finance Commission Report, it appears that the FinanceCommission in its report has already made recommendations of thesame and from the counter affidavit it appears that the UnionGovernment has been actively considering the same in consultationwith other stakeholders – Even otherwise, from the counter affidavitfiled on behalf of the Union of India, it appears that the CentralGovernment has already launched the Pradhan Mantri GaribKalyan Package under which a comprehensive personal accidentcover of Rs. 50 lakhs have been provided to 22.12 lakh health careproviders throughout the country, including community healthworkers and private health workers who may have been in directcontact and care of Covid-19 patients and may be at risk of beingimpacted/infected by this – It is further reported that on account ofunprecedented situation, private hospital staff/retired/volunteer/localurban bodies/contract/daily wage/ad-hoc/outsourced staffrequisitioned by States/Central Hospitals/ autonomous hospitals ofCentral /States/Union Territories, AIIMS & Institute of NationalImportance (INI)/hospitals of Central Ministries specifically draftedfor care of Covid-19 patients are also covered under the scheme –The benefits under the said scheme have been extended for a furtherperiod of 180 days with effect from 24.04.2021 – Therefore, itappears that sufficient care has been taken – However, some classmight have been left out, like those persons working at pre-mortem– Thus, the Union Government may look into the same and coverthem also who might have been left out and who can be said to bein direct contact of dead bodies of Covid-19 patients – The Unionof India to take appropriate steps on the recommendations made bythe Finance Commission in its XVth Finance Commission Report AB

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Abearing in mind paragraph 8.131 in consultation with otherstakeholders and experts.

Disaster Management Act, 2005: Enactment of – Object andpurpose – Discussed.

Administrative Law: Policy decision – Interference with –BScope – Held: When the Government forms its policy, it is based ona number of circumstances, on facts, law including constraint basedgovernmental resources – The Government is entitled to makepragmatic adjustments which may be called for by particularcircumstances – The function of the Court is to see that lawfulCauthority is not abused but not to appropriate to itself the taskentrusted to that authority – Therefore, the Courts would be veryslow to interfere with priorities fixed by the government in providingreliefs, unless it is patently arbitrary and/or not in the larger publicinterest at all – Judicial Review.

DJudicial Review: Scope of – Writ of Mandamus – When canbe issued – Held: If the statutory authority/authority fails to performits statutory duty cast under the statute or constitutional duty, amandamus can be issued directing the authority to perform its dutycast under the statute – In such a situation, the Court would beabsolutely justified in issuing a writ of mandamus directing theEauthority to perform its statutory duty/constitutional duty.

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Interpretation of Statutes: Plain meaning – Held: When thelanguage of the provision is plain and unambiguous, statutoryenactments must ordinarily be construed according to its plainmeaning.F

Interpretation of Statutes: Beneficial provision – Held: Thebeneficial provision of the legislation must be literally construed soas to fulfill the statutory purpose and not to frustrate it.

Disposing of the writ petitions and also all pendinginterlocutory applications, the CourtG

HELD:1.1. In Section 12 of Disaster Management Act,2005, the word “shall” is used twice. The intent of the legislatureby using the word “shall” twice is very clear and the same can bein tune with the Statement of Objects and Reasons for enactment H

of DMA 2005 and the functions and powers of the NationalAuthority. One of the Objects and Purposes is “mitigation”. Asper Section 6(1) and Sub-section 2(g) of Section 6, the NationalAuthority shall have the responsibility for laying down the policies,plans and guidelines for disaster management and recommendprovision of funds for the purpose of mitigation. Section 12specifically provides that the National Authority “shall”recommend guidelines for the minimum standards of reliefto beprovided to persons affected by disaster, which “shall” include,(i) the minimum requirements to be provided in the relief campsin relation to shelter, food, drinking water, medical cover andsanitation; (ii) the special provisions to be made for widows andorphans; and (iii) ex gratia assistance on account of loss of life asalso assistance on account of damage to houses and for restorationof means of livelihood. Therefore, it is the statutory duty castupon the National Authority to recommend guidelines for theminimum standards of relief to be provided to persons affectedby disaster, which shall include the reliefs, as stated hereinabove.The language used in the provision is very plain andunambiguous. As per the settled proposition of law laid down bythis Court in a catena of decisions, when the language of theprovision is plain and unambiguous, statutory enactments mustordinarily be construed according to its plain meaning. Thebeneficial provision of the legislation must be literally construedso as to fulfil the statutory purpose and not to frustrate it. [Para10.1][968-C-G]

1.2. Under Section 12 of Disaster Management Act, 2005,the National Authority is mandated to recommend guidelines forthe minimum standards of relief. Minimum standards of reliefare, as such, not defined under the Act. Then what is somewhatintended by the legislature while providing minimum standardsof relief is to be gathered from Section 12 itself. Ex gratiaassistance on account of loss of life as also assistance on accountof damage to houses and for restoration of means of livelihoodtherefore can be said to be part of minimum standards of relief ofwhich the National Authority is required to recommend guidelines.[Para 10.2][968-H; 969-A-B]

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A1.3. Even to interpret the legal import of the word “may”,the Court has to consider various factors, namely, the object andthe scheme of the Act, the context and the background againstwhich the words have been used, the purpose and the advantagessought 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 bedefeated. The word “shall” used twice in Section 12 significantlyimposes a duty cast upon the National Authority to issueguidelines for the minimum standards of relief which shall includeCex gratia assistance on account of loss of life as also assistanceon account of damage to houses and for restoration of means oflivelihood. Nothing is on record that any guidelines/decision hasbeen taken by the National Authority recommending guidelinesfor the minimum standards of relief in the form of ex gratiaDassistance on account of loss of life of a person who has died dueto Covid-19. At this stage, it is required to be noted and it is notin dispute and cannot be disputed that Covid-19 pandemic is adisaster within the meaning of Section 2(d) of DMA 2005. Notonly that even in the letter dated 14.03.2020, the CentralGovernment has declared Covid-19 pandemic as “notifiedEdisaster”. Even, all other steps including the guidelines and SOPsare issued under the provisions of DMA 2005. Therefore, oncethe Covid-19 pandemic is declared as “notified disaster”/nationaldisaster, even otherwise the same can be disaster within themeaning of Section 2 (d) of DMA 2005, the provisions of SectionF12 of DMA 2005 shall be applicable and it has to be applied tothe Covid-19 pandemic which is declared as “notified disaster”/national disaster. The submission on behalf of the Union of Indiathat considering the peculiar nature of the Covid-19 pandemic,even if Covid-19 pandemic is declared and/or considered as adisaster, Section 12 of DMA 2005 may not be applicable and/orGthe word “shall” should be construed as “may” as when DMA2005 was enacted, the legislature might not have visualised thatsuch a pandemic/disaster would occur which would have a long-time effect/impact. The aforesaid cannot be accepted for the simplereason that every disaster as defined under Section 2(d) of theH

Act is a disaster and once it is declared as a “notified disaster”/national disaster/disaster, Section 12 of DMA 2005 shall beapplicable and is mandatorily to be complied with, with respectto 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/have been issued by the National Authority for ex gratia assistanceon account of loss of life due to Covid-19 pandemic whilerecommending guidelines for minimum standards of relief to beprovided to the persons affected by the disaster/Covid-19pandemic. Once, it is observed as above and it is held that theword “shall” have to be read as “shall” and it is the mandatorystatutory duty cast upon the National Authority to recommendguidelines for the minimum standards of relief which shall includeex gratia assistance on account of loss of life, not recommendingany Guidelines for ex gratia assistance on account of loss of lifedue to Covid-19 pandemic, while recommending other guidelinesfor the minimum standards of relief, it can be said that the NationalAuthority has failed to perform its statutory duty cast under Section12 and therefore a writ of mandamus is to be issued to the NationalAuthority to recommend appropriate guidelines for ex gratiaassistance on account of loss of life due to Covid-19 pandemicwhile recommending guidelines for the minimum standards ofrelief to be provided to persons affected by disaster/Covid-19pandemic 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 apeculiar disaster, which the country and the world has experiencedin a long time. It has an extraordinary spread and impact fromthat of other natural disaster/disasters. Therefore, its extremespread and impact requires an approach different from the onethat is applied to other disasters/natural disasters. There shallnot be any justification to provide for the same/similar amount byway of ex gratia assistance as provided in the case of otherdisasters/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 ownpriorities and reliefs to the different sectors/for different reliefs.

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AThe Government is also required to deal with the effect of thepandemic on the economy. A huge amount is required to be spentfrom the National Disaster Response Fund (NDRF) / StateDisaster Response Fund (SDRF), even while providing minimumstandards of relief. It cannot be disputed that ex gratia assistancewould also have financial implications and which may affect theBother minimum standards of relief to be provided to the personsaffected by disaster. No State or country has unlimited resources.That is why it only announces the financial reliefs/packages tothe extent it is possible. When the Government forms its policy,it is based on a number of circumstances, on facts, law includingCconstraint based governmental resources. The Government isentitled to make pragmatic adjustments which may be called forby particular circumstances. The function of the Court is to seethat lawful authority is not abused but not to appropriate to itselfthe task entrusted to that authority. Therefore, the Courts wouldbe very slow to interfere with priorities fixed by the governmentDin providing reliefs, unless it is patently arbitrary and/or not inthe larger public interest at all. The Government should be freeto take policy decisions/decide priorities (of course to achievethe ultimate goal of DMA 2005, government should be free totake its own decisions/priorities while providing minimumEstandards of relief and even towards preparedness, mitigation,prevention and recovery), subject to the availability of theresources/funds and the amount to be spent towards other reliefson the aid and advice of the experts and looking to thecircumstances from time to time. Therefore, no relief can begranted to direct the National Authority/Central Government/FState Governments to pay a particular amount towards ex gratiaassistance on account of loss of life to the family members of thepersons who have died due to Covid-19. It should be left to thewisdom of National Authority while considering the guidelines /recommendations of the Finance Commission in its XVth FinanceGCommission Report and the funds required for other reliefs/priorities. The recommendations of the Finance commissionprovide sufficient guidelines. However, at the same time, whilerecommending guidelines for the minimum standards of relief tobe provided to persons affected by disaster/Covid-19 pandemic, H

the authority has to consider issuing/recommend guidelines onex gratia assistance on account of loss of life. Ex-gratia assistanceon account of loss of life is part of minimum standards of relief,which must be considered by the National Authority whileproviding for the minimum standards of relief to be provided tothe persons affected by disaster – in the present case Covid-19pandemic. [Para 12][972-C-H; 973-A-D]

2.3. It is reported that some States are paying ex gratiaassistance to the family members of the persons who have dieddue 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 ChiefMinister Relief Fund or other relief funds, but not from SDRF.To avoid any heart-burning and discriminatory treatment, it wouldbe appropriate for the National Authority to recommend uniformguidelines while providing for the minimum standards of relief inthe form of ex gratia assistance on account of loss of life, asmandated under Section 12 of the Act. However, at the sametime, it will always be open for the concerned States to providefor ex gratia assistance on account of loss of life and other reliefsfrom their own relief funds (other than SDRF) as it would be apolicy decision by the concerned States and they may providesuch other relief/reliefs, looking to the availability of the fund.However, merely because some States might have been payingthe ex gratia assistance on account of loss of life to the familymembers of the persons who have died due to Covid-19pandemic, no writ of mandamus can be issued directing theCentral Government/State Governments to pay a particular sum/amount by way of ex gratia assistance as the utilization of thefund/money by the Central Government would depend upon thepriorities fixed by them which includes the money/fund to be usedfor prevention, preparedness, mitigation, recovery etc. Therefore,what amount to be paid by way of ex gratia assistance to the familymembers of the persons who died due to Covid-19 pandemicshould 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 AB

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Aof death, so that the family members of the deceased who dieddue to Covid-19 may not face any difficulty in getting the benefitsof the schemes that may be declared by the Government for thedeath of the deceased, who died due to Covid-19. In the deathcertificate also, if a person has died due to Covid-19 and/or anyother complications/disease due to Covid-19, it should beBspecifically mentioned in the death certificate. The procedureshould be as simplified as it can be. A simplified procedure/guidelines is/are required to be issued by the CentralGovernment and/or appropriate authority for issuance of an officialdocument/death certificate stating the exact cause of death, i.e.,C“Death due to Covid-19”, to the family members of the deceasedwho died due to Covid-19. For guidance, such guidelines mayprovide if a person has died after he was found covid positive andhe has died within two to three months, either in the hospital oroutside the hospital or at home, the death certificate/officialdocument must be issued to the family members of the deceasedDwho died due to Covid-19 stating the cause of death as “Dieddue to Covid-19”. He/she might have died even due to othercomplications, however, due to Covid-19. In the guidelines, itmay also be provided that if the family member(s) of the deceasedwho died due to Covid-19 has/have any grievance that in the deathEcertificate/official document the correct/exact cause of death isnot mentioned, he/she must be provided with some remedy toapproach 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 directionFdirecting the respondents – State Governments to fulfil theirobligation to take care of the victims of the calamity and theirfamily members is concerned, the prayer sought is too vague.Even otherwise, considering the counter affidavit filed on behalfof the Union of India it demonstrates the various reliefs declared by the Union Government. As such, no mandamus can be issuedGdirecting the respondents – State Governments to declare aparticular policy /relief/relief package in general and the sameshall be within the domain of policy decision and would havefinancial implications also. [Para 14][975-B-C]

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5. Now so far as the relief sought to issue direction to therespondents – Union of India and others to provide social securityin the form of insurance is concerned, from the XVth FinanceCommission Report, it appears that the Finance Commission inits report has already made recommendations of the same andfrom the counter affidavit it appears that the Union Governmenthas been actively considering the same in consultation with otherstakeholders. Even otherwise, from the counter affidavit filed onbehalf of the Union of India, it appears that the CentralGovernment has already launched the Pradhan Mantri GaribKalyan Package under which a comprehensive personal accidentcover of Rs. 50 lakhs have been provided to 22.12 lakh healthcare providers throughout the country, including community healthworkers and private health workers who may have been in directcontact and care of Covid-19 patients and may be at risk of beingimpacted/infected by this. It is further reported that on accountof 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/UnionTerritories, AIIMS& Institute of National Importance (INI)/hospitals of CentralMinistries specifically drafted for care of Covid-19 patients arealso covered under the scheme. The benefits under the saidscheme have been extended for a further period of 180 days witheffect from 24.04.2021. Therefore, it appears that sufficient carehas been taken. However, some class might have been left out,like those persons working at pre-mortem. Thus, the UnionGovernment may look into the same and cover them also whomight have been left out and who can be said to be in direct contactof dead bodies of Covid-19 patients. Even, the Solicitor Generalhas also stated at the Bar that the Union Government/appropriateauthority shall look into the same. [Para 15][975-D-E, F-H;976-A-C]

6.1. The National Disaster Management Authority isdirected to recommend guidelines for ex gratia assistance onaccount of loss of life to the family members of the persons whodied due to Covid-19, as mandated under Section 12(iii) of DMA2005 for the minimum standards of relief to be provided to thepersons affected by disaster – Covid 19 Pandemic, over and above AB

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Athe guidelines already recommended for the minimum standardsof relief to be provided to persons affected by Covid-19.However, what reasonable amount to be offered towards ex gratiaassistance is left to the wisdom of National Authority which mayconsider determining the amount taking into consideration, suchas, requirement/availability of the fund under the NDRF/SDRFBfor other reliefs and the priorities determined by the NationalAuthority/Union Government and the fund required for otherminimum standards of relief and fund required for prevention,preparedness, mitigation and recovery and other reliefs to carryout the obligation under DMA 2005. The aforesaid exercise andCappropriate guidelines be recommended, as directedhereinabove, within a period of six weeks. [Para 16][976-C-G]

6.2. The Appropriate Authority is directed to issuesimplified guidelines for issuance of Death Certificates/officialdocument stating the exact cause of death, i.e., “Death due toDCovid-19”, to the family members of the deceased who died dueto Covid-19. While issuing such guidelines, the observationsmade hereinabove in paragraph 13 of the judgment be borne inmind. Such guidelines may also provide the remedy to the familymembers of the deceased who died due to Covid-19 for correctionof the death certificate/official document issued by the appropriateEauthority, if they are not satisfied with the cause of deathmentioned in the death certificate/official document issued by theappropriate authority. [Para 16][976-G-H; 977-A-B]

6.3. The Union of India to take appropriate steps on therecommendations made by the Finance Commission in its XVthFFinance Commission Report bearing in mind paragraph 8.131in 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) SCALEG415 – relied on.

DLF Universal Limited v. Director, Town and CountryPlanning Department, Haryana (2010) 14 SCC 1 :[2010] 15 SCR 85; Shin-Etsu Chemical Co. Ltd. v. AkshOptifibre Limited (2005) 7 SCC 234 : [2005] 2 Suppl.

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SCR 699; Bhavnagar University v. Palitana Sugar Mill(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 SCC162 : [1981] 1 SCR 97; Khatri (2) v. State of Bihar(1981) 1 SCC 627 : [1981] 2 SCR 408; Charan LalSahu 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.

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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,Ms. Ruhi Gupta, Harisha S.R., Advs. for the petitioner.

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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, SumeerSodhi, Varun Tankha, Hussain Ali, Siddhant Gupta, Anand S. Jondhale, H

AYashoda 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 theprayer made and the applicants are permitted to intervene in the presentproceedings.

2. These two writ petitions have been filed in Public Interestseeking directions to the respondents – Central/State Governments toCprovide ex gratia monetary compensation of Rs. 4 lacs or notified exgratia monetary compensation to the families of the deceased who havesuccumbed to the pandemic of Covid-19, in view of Section 12 of theDisaster Management Act, 2005 (hereinafter referred to as ‘DMA2005’). It is also further prayed for an appropriate direction to theDrespondents – State Governments to fulfil their obligation to take care ofvictims of the calamity and their family members. One another reliefwhich is sought in Writ Petition (Civil) No. 554 of 2021 is to issue anappropriate direction to the respondents – State Governments to issueany official document stating cause of death, to the family members ofthe deceased who died due to Covid-19. One additional relief which isEsought in Writ Petition (Civil) No. 539 of 2021 is to issue an appropriatewrit of mandamus against the respondents – Union of India and othersto provide social security and rehabilitation to the victims of Covid-19.Two applications have been filed in the aforesaid writ petitions byintervenors – family members who have lost their family members dueFto Covid-19, supporting the prayers sought in the respective writ petitions.

3. Shri S.B. Upadhyay, learned Senior Advocate has appeared onbehalf of the petitioner in Writ Petition (Civil) No. 554 of 2021. ShriGaurav Kumar Bansal, learned Advocate has appeared as Party inPerson in Writ Petition (Civil) No. 539 of 2021. Shri Sumeer Sodhi andShri Anand S. Jondhale, learned Advocates have appeared on behalf ofGthe intervenors in the respective intervention applications. Shri TusharMehta, learned Solicitor General along with Shri K.M. Natraj and Ms.Aishwarya Bhati, learned Additional Solicitor Generals have appearedon behalf of the Union of India.

3.1 Shri S.B. Upadhyay, learned Senior Advocate appearing onHbehalf of the petitioner in Writ Petition (Civil) No. 554 of 2021 has submitted that admittedly Covid-19 is a “Notified Disaster” and thereforethe provisions of the DMA 2005 shall apply. It is submitted that as suchvide letter dated 14.03.2020, Ministry of Home Affairs, Union of Indiahas stated that the Central Government, keeping in view the spread ofCovid-19 virus in India, has decided to treat it as “Notified Disaster” forthe purpose of providing assistance under State Disaster Response Fund(SDRF). It is submitted that earlier as per the letter/communication dated8.4.2015, the Government of India, Ministry of Home Affairs (DisasterManagement Division) issued revised list and norms of assistance fromSDRF and National Disaster Response Fund (NDRF). It is submittedthat 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 toother reliefs. It is submitted therefore on the same line and applying thesame criteria, the family members of those who have succumbed toCovid-19 are to be provided ex gratia monetary compensation of Rs. 4lacs, as Covid-19 is also treated, considered and declared as “NotifiedDisaster”.

3.2 It is further submitted by Shri Upadhyay, learned SeniorAdvocate appearing on behalf of the petitioner that Section 12 of theDMA 2005 mandatorily provides for the National Authority defined underSection 3 of the said Act to recommend guidelines for the minimumstandards of relief to be provided to persons affected by the disaster andit 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 NationalAuthority to provide in the guidelines for ex gratia assistance on accountof loss of life who died due to Covid-19, which is declared as a “NotifiedDisaster”.

3.3 It is submitted that to provide such ex gratia assistance onaccount of loss of life is not only a statutory obligation under Section 12of the DMA 2005, but it is the constitutional obligation also since it alsoaffects the right to life guaranteed under Article 21 of the Constitution ofIndia. It is submitted that the word “shall” occurring twice in Section 12of the Act puts a constitutional and statutory obligation on the part of theCentral/State Government to recommend guidelines for providing exgratia assistance which is in the nature of sustenance assistance. It issubmitted that as such keeping the aforesaid in mind, earlier for theyears 2015-2020 vide Ministry of Home Affairs letter dated 08.04.2015the Government has fixed norms of assistance from SDRF and NDRFfor providing succour to the aggrieved family.

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A3.4 It is further submitted that the word “shall” occurred in Section12 of the DMA 2005 should be construed as “mandatory” and shall notbe read as “may”, as contended on behalf of the Union of India. It issubmitted that if the word “shall” used in Section 12 of the DMA 2005 isread as “may”, as sought to be canvassed on behalf of the Union ofIndia, the concept of “situation interpretation” evolved would negate theBvery object and purpose enshrined in Section 12 of the DMA 2005 sincethe purpose is immediate sustenance assistance to the aggrieved family.Heavy reliance is placed on the decision of this Court in the case ofDLF Universal Limited v. Director, Town and Country PlanningDepartment, Haryana (2010) 14 SCC 1 (para 13) and Shin-EtsuCChemical Co. Ltd. v. Aksh Optifibre Limited, (2005) 7 SCC 234 (para85).

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3.5 Relying upon the decision of this Court in the case ofBhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC111 (paras 25 & 26), it is submitted that when the language used in thesection/provision is plain and unambiguous, no words shall be added,Daltered or modified unless it is plainly necessary to do so to prevent aprovision from being unintelligible, absurd, unreasonable, unworkable ortotally irreconcilable with the rest of the statute. It is submitted that inthe present case the language used in Section 12 of the DMA 2005 isplain and unambiguous and therefore the word “shall” shall be read asE“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 SwarajAbhiyan v. Union of India, (2016) 7 SCC 498 (paras 120 to 123), itis submitted that as held by this Court, a plea of financial inability cannotbe an excuse for disregarding statutory duties. Reliance is also placedon the decisions of this Court in the cases of Municipal Council, RatlamFv. 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 mayhave its financial constraint and its priorities in expenditure, the law doesnot permit any government to deprive its citizens of constitutional rightson a plea of poverty. It is submitted therefore that the plea taken by theGCentral Government that the prayer of the petitioner for the payment ofex gratia compensation for loss of life due to Covid-19 pandemic to theaggrieved families is beyond the fiscal affordability may not be accepted.It is submitted that the fiscal affordability/financial constraint cannot bea ground not to fulfil statutory obligation under the DMA 2005 and theconstitutional obligation as provided under Article 21 of the ConstitutionHof India.

3.7 It is further submitted by Shri Upadhyay, learned SeniorAdvocate appearing on behalf of the petitioner that it is the duty ofevery government, either Central or State, to see that the correct/accuratedeath certificates/official documents are issued mentioning the correctcause of death arising out of Covid-19 pandemic. It is submitted that bynot issuing the accurate/correct death certificate/official document withcorrect cause of death – Covid-19 pandemic, the family members of thedeceased, who died due to Covid-19 pandemic, will be deprived of thebenefits of the schemes, if any, declared by the Central/StateGovernments. It is submitted that not only that but by not issuing thecorrect/accurate death certificates mentioning the correct cause of death– Covid-19 pandemic, even the other citizens would be misled and thecorrect figure of deaths arising out of Covid-19 would not be known. Itis submitted that if the number of persons who died because of Covid-19are shown less, people would be misled and many a times they wouldbecome negligent. It is submitted therefore that it is in the larger publicinterest also to issue correct/accurate death certificate with correct causeof death. It is submitted that there is a requirement of simplifying theprocedure for issuance of death certificate mentioning the cause of deatharising out of Covid-19.

4. While adopting the submissions made by Shri Upadhyay, learnedSenior Advocate, Shri Gaurav Kumar Bansal, learned Advocate whohas appeared as Party in Person, in addition, has further submitted thatin the counter affidavit filed by the Union of India, one of the grounds torefuse to pay ex gratia amount of compensation to those families whosemembers have died due to Covid-19 is that Covid-19 is a continuousdisaster which was not envisaged by the Legislature at the time ofenactment of DMA 2005 and therefore the provisions of DMA 2005have to be implemented differently. It is submitted that the submissionon behalf of the Union of India that term “disaster” which was envisagedwhile enacting DMA 2005, there were broadly those disasters resultingfrom any catastrophe or calamity which is one time happening or fewincidents taking place periodically for some time, hence considering thevery nature of Covid-19, the Covid-19 disaster has to be treated differentlyfrom the term “Disaster” contemplated by the Legislature, while enactingDMA 2005. To the aforesaid, it is submitted that once Covid-19 is declaredas a “Notified Disaster/Disaster” and even otherwise as per Section2(d) of the DMA 2005, Covid-19 Pandemic is a “Disaster” and thereforeall the provisions including Section 12 of the DMA 2005 shall be applicableand come into play.

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A4.1 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 submittedthat NDMP-2019 has further classified its Natural Hazards and BiologicalNatural Hazards has been included as “Disaster”. It is submitted thatBtherefore Covid-19 being a Biological Disaster comes within the purviewand 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 isnot a disaster has no substance and may not be accepted as even theCentral Government on 14.03.2020 decided to treat Covid-19 as “NotifiedCDisaster”.

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4.2 It is submitted that even the XVth Finance Commission’s Reportwhich is prepared after Covid-19 Pandemic suggests that the CentralGovernment has always considered Covid-19 as a “Disaster” asmentioned in Section 2(d) of the DMA 2005. It is submitted thereforeDthat the submission on behalf of the Union of India that Covid-19 is notthat kind of disaster which Legislature envisaged while enacting DMA2005 is nothing but an afterthought.

4.3 Now so far as the stand taken on behalf of the Union of Indiathat the term “shall” used in Section 12 will have to be read as “may”Ewhile reading the instances given in Section 12 (i) to (iii), it is submittedthat the Parliament has used the word “shall” twice in Section 12 ofDMA 2005 which clearly shows that National Disaster ManagementAuthority (NDMA) is not only bound to recommend guidelines for theminimum standards of relief but such reliefs must contain the provisionsof ex gratia assistance on account of loss of life. It is submitted thatFfurther, use of word “shall” in Section 12 of DMA 2005 clearly indicatesthe intention of the legislature that the said provision is mandatory oneand as such it is the statutory duty of the Union Government/NDMA toissue guidelines providing ex gratia compensation to the family membersof persons who have died due to Covid-19 virus while providing theirGservices in relief operations or when they were associated withpreparedness activities to combat Covid-19 pandemic.

4.4 It is submitted that even the Union of India, Ministry of HomeAffairs vide its letter dated 8.4.2015 also issued the revised list of itemsof norms of assistance from SDRF/NDRF wherein it is clearly mentionedHthat Rs. 4 lacs shall be provided for ex gratia payment to the families of deceased persons. It is submitted that therefore the word “shall” usedby the legislature in Section 12 must be given its literal meaning unlesscontext requires otherwise.

4.5 It is further submitted by Shri Gaurav Kumar Bansal, learnedAdvocate that granting ex gratia for one disease while denying the sameto the persons suffering from other disease would create unfairness andinvidious discrimination and the same cannot be permitted, moreparticularly when the Ministry of Home Affairs or the Central Governmenthave themselves notified Covid-19 as “Notified Disaster” under DMA2005.

It is submitted that granting ex gratia for one disaster (likeearthquake, floods, cyclones etc.) while denying the same to other disaster(like Covid-19) would not only create unfairness and discrimination butalso cause undue hardship on those families who have lost their lovedones due to Covid-19 virus.

4.6 Now so far as the submission on behalf of the Union of Indiapleading fiscal affordability while making provisions for ex gratia to thefamilies of all Covid-19 deceased persons, it is submitted that as suchthere are some States like States of Bihar, Karnataka, Delhi which arepaying one time compensation in the form of ex gratia to those familieswhose members have died due to Covid-19 pandemic.

4.7 It is further submitted that item No. 23 of the Concurrent Listof Schedule VII of the Constitution of India deals with social security &social insurance and it is on the basis of this item that Parliament enactedDMA 2005. It is submitted that one of the Foundation Stones of enactingDMA 2005 is to provide social security & social insurance to the personsand families affected by disasters. It is submitted that therefore denyingthe ex gratia payment to the families of Covid-19 deceased shall notonly hit on the foundation stone on which DMA 2005 is standing butshall also defeat the whole purpose of DMA 2005. It is submitted thatbecause of Covid-19 pandemic, lakhs of families have not only lost theirnear and dear but have also lost the sole bread earner who was nurturingthe range of persons, i.e., small kids to elderly persons. It is submittedthat due to loss of sole bread earner, lakhs of families have completelydevastated and destroyed. It is submitted that grant of respectable andreasonable one-time compensation in the form of ex gratia as providedunder 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 AB

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Awhile acting as “Corona Warrior” shall not only provide a sense of socialsecurity 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 XVthFinance Commission’s Report at point number 8.132 & 8.133 has alsosuggested the Government of India to launch National Insurance SchemeBfor Disaster Related Deaths in India which will not only be able to workas Social Protection Scheme but will also not increase the administrativeburden on the Government.

5. Shri Sumeer Sodhi, learned Advocate appearing on behalf ofthe intervenors has submitted that it is the constitutional obligation of theCGovernment to take steps to ensure that the minimum facilities of lifeare provided to every person, and there are equalities of income andmaterial resources as far as democratically possible. It is submitted thatthe preamble of the Constitution of India declares India as a “Socialist”country and this term itself gives a substantial proof of the existence ofsocial welfare responsibilities of the government. It is submitted thatDArticle 39A of the Constitution of India lays down a duty on thegovernment to frame its policies in such a manner that the citizens getequal right to an adequate means of livelihood. It is submitted that thoughno amount of money will be enough to mitigate the loss of a familymember but still the government as its social responsibility shall frame aEnational scheme for providing compensation to the families of those peoplewho have died due to Covid-19 pandemic so that they all can live adignified life and fulfil their basic necessities.

5.1 Relying upon the decision of this Court in the case of CharanLal Sahu v. Union of India, (1990) 1 SCC 613 (popularly known asF“Bhopal Gas Leak Disaster case”, it is submitted that it is held in theaforesaid case that the Government has the sovereign power ofguardianship over the persons under disability and it is its duty to protectthem. Reliance is also placed on the decision of this Court in the case ofSamatha v. State of A.P., (1997) 8 SCC 191 (para 72).

G5.2 It is further submitted by Shri Sodhi, learned Advocateappearing for the intervenors that the Government cannot be permittedto abdicate from its constitutional duty by claiming fiscal constraint orinability. It is submitted that the submission of the Government thatpayment of ex gratia compensation to all deceased persons who havedied due to Covid-19, is beyond their fiscal affordability cannot be allowedHas a ground for escape. It is submitted that if the Government is allowed to claim fiscal inability as a ground to get away from its constitutionalduty, then it will set a dangerous precedent and every time when thegovernment will be in a tight spot, it may legally defy duties under thelaws by hiding behind the shield of fiscal inability to protect itself fromproviding relief.

5.3 It is submitted that when Covid-19 virus rapidly startedspreading in our country, the Union of India proactively notified “Covid-19” as a pandemic in order to exercise powers under DMA 2005 videletter dated 14.03.2020. It is submitted that now when the responsibilityof mitigating the loss of life under DMA 2005 arises, the government isabstaining from its responsibility and trying to escape from its duty toprovide compensation to people who have lost their loved ones. It issubmitted that in the modified list of items and norms of assistance fromSDRF vide letter dated 14.03.2020, the Government of India haswithdrawn the clause of ex gratia compensation. It is submitted thatSection 12 of DMA 2005 explicitly states that the NDMA shallrecommend guidelines for minimum standards of relief to be provided tothe persons affected by disaster. It is submitted that special emphasisshould 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 inan anomaly which has no justifiable reasoning. It is further submittedthat there must be a uniform policy on compensation. It is submitted thatcurrently different States are paying different amount of compensationto the families of the deceased persons. It is submitted that the State ofBihar has announced that it will provide Rs. 4 lacs compensation in caseof Covid-19 death; State of Madhya Pradesh has announced that anamount of Rs. 1 lac shall be provided and the Government of Delhi hasrecently announced that the amount of compensation in case of Covid-19 death shall be Rs. 50,000/-. It is submitted that such incongruity hascrept in only because of the wrongful and illegal act of withdrawal ofmonetary compensation by the Central Government. It is submitted thatthere cannot be any discrimination in benefits given to family membersof those who have died due to Covid-19 pandemic.

6. While opposing the present petitions, Shri Tushar Mehta, learnedSolicitor General has submitted that it is not the case on behalf of theUnion of India that Covid-19 is not a “Notified Disaster/Disaster”. It issubmitted that it is also not in dispute that the provisions of DMA 2005shall be applicable with respect to Covid-19 pandemic. It is submitted A

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Athat as such various guidelines/SOPs are issued and the steps takenunder the provisions of DMA 2005. It is further submitted that even theUnion government is also not facing financial constraint and/or pleadingfiscal affordability. It is submitted that the issue is not of fiscalaffordability, but rather of the most rational, judicious and optimum usageof fiscal and all other resources of the nation. It is submitted that questionBis of priorities and not facing financial constraint. It is submitted that itmay not be misconstrued that the Government is opposing grant of exgratia payment due to financial constraint.

6.1 It is submitted that as mentioned in the detailed andcomprehensive affidavit filed on behalf of the Union of India, importantCsteps have been taken by the Central Government under DMA 2005, asalso, the steps taken specifically as Nation’s response to Covid-19pandemic wherein a much more comprehensive, multi-pronged, multi-sectoral, whole of society and whole of government, while at the sametime dynamic approach has been adopted, in tune with the evolving natureDof Covid-19 virus.

6.2 It is submitted that various steps have been taken by the Unionof India, to strategize nation’s response to Covid-19, a once in a lifetimepandemic inflicted on the entire world, wherein not just the funds ofNDRF and SDRF, but even from the Consolidated Fund of India areEbeing utilised as per the advice of the experts. It is submitted that specificsteps have been taken for ramping up the entire health infrastructure,preparedness, relief, restoration, mitigation and reconstruction, in a veryshort time, to include, inter-alia:

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b)Augmenting hospital facilities, oxygenated beds, ventilators,ICU facilities etc.; c)Augmentation of health workforce and their insurance; d)Augmentation, allocation, supply and transportation ofGoxygen and other essential drugs; e)Research, development, enhanced production andadministration of vaccinations to rapidly cover one of world’slargest eligible population of beneficiaries; f)Ensuring food security to the vulnerable groups;H

g)Minimising the adverse impact of large-scale economicdisruptions by multi-pronged approach; and h)Rehabilitation, protection and education of children orphaneddue 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-19pandemic and its effects/impacts, the guidelines/reliefs provided/to beprovided have to be different from the disasters contemplated by thelegislature while enacting DMA 2005. It is submitted that in the “disaster”originally contemplated, is a one-time occurrence or the same occursrepeatedly for few times like floods, earthquake, cyclone, different kindsof “interim measures of relief” are to be provided, as generally it is notdifficult to deal with such disasters which do not require day-to-dayexpenditure, day-to-day monitoring, day-to-day change in priorities andday-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 decidingthe scope and ambit of Section 12 of DMA 2005, in the present context.

6.4 It is submitted that it is always desirable that any disaster ofthe nature of earthquake, flood, cyclone etc., an ex-gratia payment toevery deceased is stipulated in the form of guidelines contemplated underSection 12. However, when the disaster not only remains an on-goingdisaster but requires governmental expenditure, spending from publicexchequer, monitoring the disaster on a daily basis and treating the personswith the best, everchanging and modern facilities available, the conceptsof “Minimum Standards of Relief”, under Section 12 will differ. In ascenario like an on-going pandemic, the Central Government will haveto provide for a different “Minimum Standards of Relief” keeping thepopulation suffering from the disaster in mind, broadening its own vision,providing for a multi-thronged approach and putting life, health and safetyof the citizens at the topmost priority, for which expenditure is needed ona daily basis.

6.5 It is submitted that the Central Government, by way of“Minimum Standards of Relief” under Section 12, has already takenseveral steps providing for substantial and speedy measures by way ofincrease in the health, infrastructure, ensuring food safety to every citizen(as the present disaster required several lockdowns resulting in loss ofearning), insurance cover to those who were dealing with the pandemicby directly remaining near to Covid infected patients etc.

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A6.6 It is submitted that Covid-19 has come as a novel virus anddisease resulting in a pandemic for the entire world. The entire worldhas 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 allcountries. It is submitted that therefore the Central Government adoptedBa multi-pronged, multi-sectoral, whole of society and a whole ofgovernment approach, along with the National Plan, in order to tailor theresponse of the nation in tune with the evolving nature of the virus. It issubmitted that the Government of India while implementing DMA 2005has applied a different approach keeping the unprecedented nature ofCdisaster in mind, while supporting individual States/UTs as per their specificneeds. It is submitted that such support for fighting the pandemic situationhas consisted of ramping up the health infrastructure in a short time,which include testing, treatment, and quarantine facilities on large-scaleon the one hand, and augmenting hospital facilities, which includeoxygenated beds, ventilators, and ICU facilities, on the other, in whichDthe fund of not only NDRF but even from the Consolidated Fund ofIndia is being spent. It is submitted that this is an on-going effort, whichwill have to be and is being scaled up further in response to successivewaves of Covid-19. It is submitted that there is a large-scale increase inthe health structure during the course of the pandemic as under:

6.7 It is submitted that the due to the peculiar nature of the COVID-19 pandemic, it was advisable not to formulate a strait jacket guidelineand a cast in stone formula on “Minimum Standards of Relief”. It issubmitted that in order to enable the authorities to deal with the everchanging situations in the best possible manner, utilising all the financial,human, infrastructural and all resources of the nation rationally, judiciouslyand keeping the future contingencies in mind, as the world does notknow how this pandemic will take shape in the future, the Union of Indiahas taken a conscious policy decision to provide relief(s) depending uponthe ever changing needs through various Ministries/Departments andsuch actions are coordinated and monitored by the National ExecutiveCommittee, as contemplated in the Disaster Management Act, 2005 ingeneral and under Section 10 in particular.

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It is submitted that the following measures have been taken bythe Union of India/NDMA:

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(2) In order to supplement the efforts of the State Governments,the Central Government on 14th March 2020, by way of aspecial one-time dispensation, decided to treat COVID-19as a “notified disaster” for the purpose of providing limitedassistance towards containment measures under SDRF,E

(i) Measures for quarantine for sample collection andscreening

(ii) Procurement of essential equipments/ labs forresponse to COVID-19.

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(iii) To deal with problems of migrant labourers, on 28thMarch, 2020, the Central Government allowed useof SDRF for setting up relief camps and to providefood, water, etc. to migrant workers and otherstranded people.

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(iv) On 23rd September, 2020, the Central Governmentfurther allowed use of SDRF by the States foroxygen generation for COVID-19 patients in States,to strengthen transport services for transportingoxygen, and setting up containment zones, COVID-19 care centres.

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A(v)for the containment measures allowed under SDRF,State Governments were allowed to spend up to amaximum of 35% of the annual allocation of fundsunder SDRF for the financial year 2019-20. Theceiling of 35% was further enhanced to 50% duringthe financial years 2020-21.

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(vi) The State Governments were allowed to utilize up-to 10% of their opening balance of SDRF as on01.04.2020 by way of one-time special dispensation,for COVID-19 containment measures during 2020-21.

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(vii) Keeping in view the recent surge in COVID-19 casesin the country, by way of a special dispensation,Central Government, further extended thedispensation allowed to States to utilise up to 50% oftheir annual allocation of SDRF, for containmentDmeasure of COVID-19 during the financial year2021-22.

6.8 It is further submitted that COVID-19 pandemic has also beenan economic disruption. However, the government has made herculeanefforts to deter it from becoming a matter of economic distress, especiallyfor the poorer and marginalised sections of society. Considering theEeconomywide impact, the Government of India has announced severalpackages, protecting the poor and vulnerable groups, extending cheapcredit to small and medium 18 businesses, and reducing taxes in manyareas. It is submitted that these packages consist of lakhs of croresannounced through the Pradhan Mantri Garib Kalyan Yojana (PMGKY)Fand the Prime Minister Atma Nirbhar Swastha Bharat Yojana(PMANSBY). It is submitted that to sustain the economic activities todeal with the economic impacts of disaster, the Central Government hadto come out with several schemes either itself or through the directivesissued by the Reserve Bank of India to the banks for the purpose ofwaiver of interest and/or restructuring of loan accounts. This has createdGa huge burden on the overall economy of the nation and exchequer ofthe Central Government, in particular. However, the Central Governmentis doing its best to maintain its financial equilibrium without compromisingon the health, safety, food security and economic stability of the country.

6.9 It is further submitted that the Government of India has alsoHdecided to vaccinate the people of India as the most reliable preventive measure. To achieve this goal by the end of this year, the Governmenthas taken all the steps to scale up the production, supplies, and import ofvaccines. In the annual budget for 2021-22, the Government of Indiahas allocated Rs. 35,000 crores for the mass vaccination campaign.

6.10 It is further submitted that, the release of funds under NationalHealth Mission for FY 2018-19, FY 2019-20, FY 2020-21 and 2021-22are as under:

6.11 It is further submitted that in FY 2019-20, in addition to theabove, funds to the tune of Rs. 1113.21 Crore were released to theStates /UTs towards management and containment of COVID-19 overand above their normal resource envelope under NHM. The releasewas 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, inaddition to the above, funds to the tune of Rs. 8257.89 Crore have beenreleased to the States/UTs under the India COVID-19 EmergencyResponse and Health Systems Preparedness Package through NHM,towards management and containment of COVID-19 pandemic, detailsof which are as under:

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A6.13 It is further submitted that with regard to the prayer of thepetitioner to allow ex gratia compensation/assistance to the familymembers of the deceased persons who have died due to COVID-19,while providing their services in relief operations or when they wereassociated with preparedness activities to combat COVID-19 pandemic,the Central Government, by its pro-active and pre-emptive approach,Bhad launched the Pradhan Mantri Garib Kalyan Package (PMGKP) asearly as on 30.03.2020. Under the scheme, a comprehensive personalaccident cover of Rs. 50 Lakh has been provided to 22.12 Lakh HealthCare Providers throughout the country, including community healthworkers and private health workers who may have been in direct contactCand care of COVID-19 patients and may be at risk of being impacted/infected by this. It is submitted that, further on account of theunprecedented situation, private hospital staff/retired/ volunteer/localurban bodies/contract/daily wage/ad-hoc/outsourced staff requisitionedby states/central hospitals/autonomous hospitals of central/states/UTs,AIIMS & Institute of National Importance (INI)s/hospitals of CentralDMinistries specifically drafted for care of COVID-19 patients were alsocovered under the scheme. The benefits under the said scheme havebeen extended for a further period of 180 days (w.e.f. 24.04.2021). Thescheme is being implemented through an insurance policy of New IndiaAssurance Company. In order to further expedite the processing ofEclaims, a new system has been introduced as per which the claims arenow being processed by the District Collectors and forwarded to theinsurance company for release of funds to the claimants. So far, `442.4crore have been released to the insurance company in this regard. Herein,477 claims of healthcare workers under the scheme have already beengiven the benefits, and further 344 claims of healthcare workers areFunder process.

6.14 It is further submitted that the financing of Disaster RiskManagement (DRM) under the Disaster Management Act, 2005, is basedon the recommendations of successive Finance Commissions, constitutedunder Article 280 of the Constitution of India. It is further submitted that,Gthe allocation of the amount under NDRF and SDRF; guidelines onconstitution and administration of SDRF and NDRF; and the items andnorms for providing for relief assistance from SDRF/NDRF are basedon the constitutional recommendations of the successive FinanceCommissions. It is further stated that the successive FinanceHCommissions, after considering all the facets of disaster risk management,

have recommended the expenditure for providing financial relief against12 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 providedrelief from these funds, which is mentioned in the memorandum dated08.04.2015. It is submitted that, the XV-Finance Commission in para8.11 of Chapter 8 of its report for the period 2021-22 to 2025-26, whilemaking allocation under NDRF and SDRF inter alia, has chosen, to dealwith the issue of financing of Covid-19 pandemic. It is submitted that therecommendations of XVth Finance Commission’s Report have been madein light of the experience gained and also the context of the unprecedentedCovid-19. It is submitted that this report made recommendations forDisaster Risk Management, covering the period from 2021-2022 to 2025-2026, expanding the scope of Disaster Management beyond the traditionalresponse and relief functions, to include preparedness, mitigation, recoveryand reconstruction, as reflected in chapter 8 of the XVth FinanceCommission’s Report. It is submitted that this report of XVth FinanceCommission along with the Explanatory Memorandum was laid beforethe Parliament, as mandated under Article 281 of the Constitution ofIndia.

It is submitted that in accordance with the recommendations ofXVth Finance Commission and the domain subject matter experts, theUnion of India devised the strategy to deal with, the extremely contagious,volatile and ever changing impact of the mutations of the virus COVID19, in the best possible manner, utilizing all the financial, human andinfrastructural resources of the nation, rationally and judiciously, alsokeeping in mind the future contingencies, rather than formulating theresponse in the straitjacket formula of Minimum Standards of Relief, ascontemplated 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 andall other resources of the nation.

6.15 It is further submitted that, to appreciate the context of an‘Ex-Gratia’ payment, Section 12 of Disaster Management Act, 2005needs to be read with section 46, wherein sub-section 46(2) reads asunder:

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Atowards meeting the expenses for emergency response, reliefand rehabilitation in accordance with the guidelines laid downby the Central Government in consultation with the NationalAuthority.”

The Central Government has already declared COVID-19 as aB“notified disaster” under the Disaster Management Act, 2005. It is therebysubmitted that, as provided under Section 12 of the Disaster ManagementAct, 2005, the National Disaster Management Authority (NDMA) hasalready issued general Guidelines for “Minimum Standards of Relief”under Section 12 of the Disaster Management Act. However, on theissue of ‘ex-gratia’ assistance on account of loss of life, the guidelinesCprovide that the norms provided by Government of India (Ministry ofHome Affairs) for assistance from SDRF should be the MinimumStandards of Relief.

6.16 It is further submitted that, the XVth Finance Commission, inpara 8.141 of its report, had considered the request of the StateDGovernments for inclusion of a number of calamities under the eligiblelist of disasters under SDRF/NDRF. Herein, after consideration, in para8.143 of its report, the Commission had observed that the list of notifieddisasters 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 includesEResponse Fund and Mitigation Fund] covers the needs of the States to alarge extent and thus did not find much merit in the request to expand itsscope.

6.17 It is further submitted that, in order to supplement the effortsof the State Government, the Central Government, on 14[th] March, 2020Fby way of a special one-time dispensation, decided to treat COVID-19as a “notified disaster” for the purpose of limited assistance towardscontainment measures under SDRF on (i) Measures for quarantine forsample collection and screening (ii) Procurement of essential equipments/labs for response to COVID-19. Further, to deal with problems of migrantGlabourers, on 28[th] March, 2020, the Central Government allowed use ofSDRF for setting up relief camps and to provide food, water, etc. tomigrant workers and other stranded people. On 23th September, 2020,the Central Government further allowed use of SDRF by the States foroxygen generation for COVID-19 patients in States, to strengthentransport services for transporting oxygen, and setting up containmentHzones, COVID-19 care centres.

6.18 It is further submitted that, ex-gratia payment under SDRF/NDRF guidelines issued under section 46(2) of the Disaster ManagementAct, 2005 is available to persons who have died, in case of 12 notifieddisasters and other local natural disasters which are notified by the StateGovernments. However, COVID-19 Pandemic/Disaster has not beenrecommended by the XVth Finance Commission for financing of reliefmeasures from SDRMF/NDRMF, which includes ex-gratia payment.

6.19 So far as the recommendations of the XVth FinanceCommission on insurance is concerned, it is submitted that, the XVthFinance Commission, in para 8.131 of its report, has proposed 4 insuranceinterventions, which needs to be further studied by the NDMA and therelevant Ministries about their feasibility. In this regard, it is submittedthat the recommendations of the Commission are under consultation byNDMA 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 thatmay be used to pay for disaster related deaths due to Covid-19. In thisregard it is submitted that, the XVth Finance Commission has proposedfour Insurance interventions which need to be studied further by theNDMA and relevant ministries for their feasibility. These interventionsare:

16.1 National Insurance Scheme for Disaster-related Deaths 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 HazardEvents 6.19.2 It is submitted that, in this context, in February 2020, a‘National Workshop on Risk Insurance’ was held in Mumbai which wasattended 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 inthe Workshop, upon the suggestion of Member Secretary (NDMA), aWorking Group (WG) was constituted comprising members from NIDM,NDMA, IRDAI as well as CEO’s/Chairman of Insurance Companiesfor deliberations on risk insurance coverage against natural disasters inIndia. In its final report submitted in April, 2021 to DM Division of Ministry A

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Aof Home Affairs, the WG has recommended a parametric trigger-basedinsurance solution that can pay claims in the event of earthquake, cyclone,extreme precipitation or river flood. In this regard, the NDMA hasrequested 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 stakeholdersand also beneficiaries of proposed insurance schemes, theirrecommendations and availability of loss data are the crucial factors tobe considered before moving ahead. However, the insurance coveragebeing deliberated does not cover risk insurance from pandemics orCepidemics 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) conceptfor promoting disaster risk transfer, including insurance in India. ADBthrough its TA is looking forward to develop disaster risk financing solutionsDfor Indian States. In this regard, a meeting was also held on 05.04.2021between ADB and NDMA. Herein, during the course of the meeting,ADB proposed for a hybrid Insurance solution i.e., combination ofParametric Insurance and Indemnity insurance; and also proposed for ajoint meeting between NDMA, Department of Financial Services (DFS),Eand MHA.

6.19.5 It is submitted that, NDMA has requested ADB to conductthe proposed meeting as per convenience of MHA/DFS and informNDMA accordingly. However, the meeting scheduled on 12.04.2021,had to be postponed due to the second wave of the pandemic. It isFsubmitted that however, as such, and as submitted hereinabove and sostated in the counter affidavit, all frontline workers are covered underthe insurance, the particulars of which are stated hereinabove.

6.20 Now so far as the issue with respect to the issuance of thecorrect and accurate death certificates with correct cause of death dueGto Covid-19 and recording of Covid-19 deaths are concerned, it issubmitted that there is a statutory mechanism and any breach of theguidelines on the same would be a criminal offence as stipulated underSection 188 of the IPC. It is submitted that any death resulting fromCovid-19 shall have to be certified, i.e., as Covid death, failing which,everyone responsible (including the certifying doctor) shall be responsibleHfor penal consequences.

6.20.1 It is submitted that the broad guidelines for appropriaterecording of Covid-19 related deaths in India were prepared by the IndianCouncil of Medical Research (ICMR) and were issued on 10.05.2020for all States for implementation and subsequently placed on the ICMRwebsite. This was further communicated to the MoHFW, Governmentof India. Thereafter, the Ministry communicated it to all the States andUTs. This guidance is to help and guide doctor’s certification for Covid-19 related deaths. It is submitted that the guidelines clearly state thatpositive deaths, implicate deaths relating to Covid-19. It is submitted thatfurther these guidelines are in sync with the World Health OrganisationMortality Coding.

6.20.2 It is further submitted that, on the question of issuance ofdeath certificates, the registration of birth and death is done under theprovisions of a Central Act, namely, Registration of Births and DeathsAct, 1969. This Act was enacted in the year 1969 and was enforced inmost of the States/UTs from 1[st] April, 1970 to promote uniformity andcomparability in the registration of Births and Deaths across the country.

6.20.3 It is further submitted that the Registrar General of Indiaat the Central level coordinates and unifies the activities of registrationthroughout the country and at the same time allowing enough scope forthe State Governments to evolve an efficient system of registration suitedto the characteristics of the respective administration.

6.20.4 It is submitted that, in the context of pandemic due to coronavirus, the office of the Registrar General of India (ORGI) had issueddirections/guidelines to the Chief Registrars of all States/UTs during April,2020 to collect and certify the information on cause of death due toCOVID-19 as per two emergency codes created by World HealthOrganization (WHO) for COVID-19 in the 10th revision of InternationalStatistical Classification (ICD-10) of Diseases and Related HealthProblems. It is submitted that recently in May, 2021, ORGI has alsoissued guidelines regarding registration of death and recording the causeof death wherein it has been advised that the death of a person shouldbe registered within the stipulated time of 21 days.

6.20.5 So far as the guidelines regarding death audit and deathcertification, it is submitted that the MoHFW vide its letter dated09.10.2020 has released guidelines on distinction between ‘Death Audit’and ‘Death Certification’.

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AIt is submitted that ‘Death Certification’ is required to be done forrecording deaths in accordance with the regulations prescribed by theRegistrar General of India. The primary goal of certification of cause ofdeath (Death Certificate) is to identify and correctly classify all deathsdue to a medical condition (e.g., COVID-19) and to eliminate anydiscrepancy in coding so as to obtain true estimates of burden of COVID-B19 deaths. All deaths with a diagnosis of COVID-19, irrespective of co-morbidities, are to be classified as deaths due to COVID-19. It issubmitted that the only exception could be where there is a clearalternative cause of death, 47 that cannot be attributed to COVID-19(e.g., accidental trauma, poisoning, acute myocardial infarction, etc),Cwhere COVID-19 is an incidental finding. 49. Whereas, ‘Death Audit’on the other hand is an administrative exercise to identify gaps thatcontribute to deaths of patients. The aim is to improve quality of healthcareservices by suitable corrective measures to prevent/minimize futuredeaths. It is submitted that the same is to be done as per the indicativeproforma.D

6.21 Shri Tushar Mehta, learned Solicitor General appearing onbehalf of the Union of India has vehemently submitted that whileinterpreting Section 12 of the DMA 2005, the term “shall” must becohered as “may”, thereby making the provision directory/discretionaryand not mandatory, in the light of peculiar facts and comprehensive stepsEtaken by the Union of India. It is submitted that this Court in a catena ofjudgments on the interplay between “may”, “shall” and “must”, haveseldom held the phrases to their literary interpretation, but instead lookedinto the intent of the legislature against the backdrop of the prevailingcircumstances. Heavy reliance is placed on the decision of this Court in Fthe case of Bachahan Devi v. Nagar Nigam, Gorakhpur, (2008) 12SCC 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 summarizedGas under:

i) to direct the National Disaster Management Authority (NDMA)/Central Government/State Governments to provide ex gratia monetarycompensation of Rs. 4 lacs or notified ex gratia monetary compensationto the families of the deceased persons who have succumbed to theHpandemic of Covid-19, in view of Section 12 of DMA 2005; ii) to direct the respondents/State Governments to fulfill theirobligation(s) to take care of victims of the calamity and their familymembers;

iii) to issue an appropriate direction to the respondents – StateGovernments to issue any official document stating cause of death, tothe family members of the deceased who died due to Covid-19; and

iv) to direct the respondents – Union of India and others to providesocial 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 financialimplications which might affect the economy of the country and whichmay also affect the other priorities and which may affect theGovernment’s other schemes declared to achieve the object and purposeof enactment of DMA 2005 are required to be considered.

7.2 An identical question came to be considered by this Court inthe recent decision in Writ Petition (C) No. 476 of 2020 (Small ScaleIndustrial Manufacturers Association (Regd.) v. Union of India andothers), decided on 23.03.2021 (2021 (4) SCALE 415), and this Courthad an occasion to consider in detail the scope of judicial review. Whileconsidering the other decisions of this Court on the limited scope ofjudicial review, in paragraphs 14 to 20, this Court has observed and heldas under:

14. In catena of decisions and time and again this Court hasconsidered the limited scope of judicial review in economic policymatters. From various decisions of this Court, this Court hasconsistently observed and held as under:

i) The Court will not debate academic matters or concern itselfwith intricacies of trade and commerce;

ii) It is neither within the domain of the courts nor the scope ofjudicial review to embark upon an enquiry as to whether a particularpublic policy is wise or whether better public policy can be evolved.Nor are the courts inclined to strike down a policy at the behest ofa petitioner merely because it has been urged that a differentpolicy would have been fairer or wiser or more scientific or morelogical. Wisdom and advisability of economic policy are ordinarilynot amenable to judicial review; AB

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iii) Economic and fiscal regulatory measures are a field whereJudges should encroach upon very warily as Judges are not expertsin these matters.

14.1 In R.K. Garg v. Union of India (1981) 4 SCC 675, it hasbeen observed and held that laws relating to economic activitiesshould be viewed with greater latitude than laws touching civilrights such as freedom of speech, religion etc. It is further observedthat the legislature should be allowed some play in the joints, becauseit has to deal with complex problems which do not admit of solutionthrough any doctrinaire or strait-jacket formula and this particularlytrue in case of legislation dealing with economic matters.

14.2 In the case of Arun Kumar Agrawal v. Union of India(2013) 7 SCC 1, this Court had an occasion to consider thefollowing observations made the Supreme Court of the UnitedStates in the case of Metropolis Theatre Co. v. Chicago, 57 LEd 730: 228 US 61 (1913):

“…The problems of Government are practical ones and mayjustify, if they do not require, rough accommodation, illogical, ifmay be, and unscientific. But even such criticism should not behastily expressed. What is the best is not always discernible; thewisdom of any choice may be disputed or condemned. Mere errorsof Government are not subject to our judicial review. It is only itspalpably 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 laiddown in Permian Basin Area Rate Cases, 20 L Ed (2d) 312, isentitled to make pragmatic adjustments which may be called forby particular circumstances. The court cannot strike down a policydecision taken by the State Government merely because it feelsthat another policy decision would have been fairer or wiser ormore scientific or logical. The court can interfere only if the policydecision is patently arbitrary, discriminatory or mala fide.

14.4 In the case of BALCO Employees’ Union (Regd.) v. Unionof India (2002) 2 SCC 333, this Court has observed that Wisdomand advisability of economic policies are ordinarily not amenableto judicial review unless it can be demonstrated that the policy iscontrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of differenteconomic policies and consider whether a wiser or better one canbe evolved.

It is further observed that in the case of a policy decision oneconomic matters, the courts should be very circumspect inconducting an enquiry or investigation and must be more reluctantto impugn the judgment of the experts who may have arrived at aconclusion unless the court is satisfied that there is illegality in thedecision 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 thisCourt that thefunction of the Court is to see that lawful authorityis not abused but not to appropriate to itself the task entrusted tothat authority. It is further observed that a public body investedwith statutory powers must take care not to exceed or abuse itspower. It must keep within the limits of the authority committed toit. It must act in good faith and it must act reasonably. Courts arenot to interfere with economic policy which is the function ofexperts. It is not the function of the courts to sit in judgment overmatters of economic policy and it must necessarily be left to theexpert bodies. In such matters even experts can seriously anddoubtlessly differ. Courts cannot be expected to decide themwithout even the aid of experts.

It is further observed that it is not the function of the Court toamend and lay down some other directions. The function of thecourt is not to advise in matters relating to financial and economicpolicies for which bodies like RBI are fully competent. The courtcan only strike down some or entire directions issued by the RBIin case the court is satisfied that the directions were whollyunreasonable or in violative of any provisions of the Constitutionor any statute. It would be hazardous and risky for the courts totread an unknown path and should leave such task to the expertbodies. This Court has repeatedly said that matters of economicpolicy ought to be left to the government.

14.6 In the case of Narmada Bachao Andolan v. Union ofIndia, (2000) 10 SCC 664, in paras 229 & 233, it is observedand held as under:

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A“229. It is now well settled that the courts, in the exercise of theirjurisdiction, will not transgress into the field of policy decision.Whether to have an infrastructural project or not and what is thetype of project to be undertaken and how it has to be executed,are part of policy-making process and the courts are ill- equippedto adjudicate on a policy decision so undertaken. The court, noBdoubt, has a duty to see that in the undertaking of a decision, nolaw is violated and people’s fundamental rights are not transgressedupon except to the extent permissible under the Constitution.

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233. At the same time, in exercise of its enormous power thecourt should not be called upon to or undertake governmentalCduties or functions. The courts cannot run the Government norcan the administration indulge in abuse or non-use of power andget away with it. The essence of judicial review is a constitutionalfundamental. The role of the higher judiciary under the Constitutioncasts on it a great obligation as the sentinel to defend the valuesDof the Constitution and the rights of Indians. The courts must,therefore, act within their judicial permissible limitations to upholdthe rule of law and harness their power in public interest. It isprecisely for this reason that it has been consistently held by thisCourt that in matters of policy the court will not interfere. Whenthere is a valid law requiring the Government to act in a particularEmanner the court ought not to, without striking down the law, giveany 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 SC1296, this Court observed as under:

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“We do not think that it is the function of the Court to set in judgmentover such matters of economic policy as must necessarily be leftto the government of the day to decide. Many of them are mattersof prediction of ultimate results on which even experts can seriouslyerr and doubtlessly differ. Courts can certainly not be expected toGdecide 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 Courtgives a large leeway to the executive and the legislature H

Government would take diverse factors for formulating the policyin the overall larger interest of the economy of the country. TheCourt therefore would prefer to allow free play to the Governmentto evolve fiscal policy in the public interest and to act upon thesame.”

15. What is best in the national economy and in what manner andto what extent the financial reliefs/packages be formulated, offeredand implemented is ultimately to be decided by the Governmentand RBI on the aid and advise of the experts. The same is amatter for decision exclusively within the province of the CentralGovernment. Such matters do not ordinarily attract the power ofjudicial review. Merely because some class/sector may not beagreeable and/or satisfied with such packages/policy decisions,the courts, in exercise of the power of judicial review, do notordinarily interfere with the policy decisions, unless such policycould be faulted on the ground of mala fide, arbitrariness, unfairnessetc.

16. There are matters regarding which Judges and the Lawyersof the courts can hardly be expected to have much knowledge byreasons of their training and expertise. Economic and fiscalregulatory measures are a field where Judges should encroachupon very warily as Judges are not experts in these matters.

17. The correctness of the reasons which prompted thegovernment in decision taking one course of action instead ofanother is not a matter of concern in judicial review and the courtis not the appropriate forum for such investigation. The policydecision must be left to the government as it alone can adoptwhich policy should be adopted after considering of the pointsfrom different angles. In assessing the propriety of the decisionof the Government the court cannot interfere even if a secondview is possible from that of the government.

18. Legality of the policy, and not the wisdom or soundness of thepolicy, is the subject of judicial review. The scope of judicial reviewof the governmental policy is now well defined. The courts do notand cannot act as an appellate authority examining the correctness,stability and appropriateness of a policy, nor are the courts advisersto the executives on matters of policy which the executives areentitled to formulate.

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A19. Government has to decide its own priorities and relief to thedifferent sectors. It cannot be disputed that pandemic affectedthe entire country and barring few of the sectors. However, atthe same time, the Government is required to take various measuresin different fields/sectors like public health, employment, providingfood and shelter to the common people/migrants, transportationBof migrants etc. and therefore, as such, the government hasannounced various financial packages/reliefs. Even thegovernment also suffered due to lockdown, due to unprecedentedcovid-19 pandemic and also even lost the revenue in the form ofGST. Still, the Government seems to have come out with variousCreliefs/packages. Government has its own financial constraints.Therefore, as such, no writ of mandamus can be issued directingthe Government/RBI to announce/declare particular reliefpackages and/or to declare a particular policy, more particularlywhen many complex issues will arise in the field of economy andwhat will be the overall effect on the economy of the country forDwhich the courts do not have any expertise and which shall be leftto the Government and the RBI to announce the relief packages/economic policy in the form of reliefs on the basis of the advice ofthe experts. Therefore, no writ of mandamus can be issued.

20. No State or country can have unlimited resources to spend onEany of its projects. That is why it only announces the financialreliefs/packages to the extent it is feasible. The court would notinterfere with any opinion formed by the Government if it is basedon the relevant facts and circumstances or based on expert advice.It is not normally within the domain of any court to weigh the prosFand cons of the policy or to scrutinize it and test the degree of itsbeneficial or equitable disposition for the purpose of varying,modifying or annulling it, based on howsoever sound and goodreasoning, only where it is arbitrary and violative of anyConstitutional, statutory or any other provisions of law. WhenGovernment forms its policy, it is based on a number ofGcircumstances on facts, law including constraints based on itsresources. It is also based on expert opinion. It would be dangerousif court is asked to test the utility, beneficial effect of the policy orits appraisal based on facts set out on affidavits.”

7.3 However, at the same time, if the statutory authority/authorityHhas failed to perform its statutory duty cast under the statute or constitutional duty, a mandamus can be issued directing the authority toperform its duty cast under the statute. In such a situation, the Courtwould be absolutely justified in issuing a writ of mandamus directing theauthority to perform its statutory duty/constitutional duty.

8. The reliefs sought in the present petitions are required to beconsidered in the light of the observations made hereinabove on thescope of judicial review.

While praying for ex gratia compensation of Rs. 4 lacs to thefamily members of the persons who have died due to Covid-19, heavyreliance is placed on Section 12 of DMA 2005 and the earlier decisioncontained in the letter dated 8.4.2015, by which it was provided to payRs. 4 lacs by way of ex gratia to the kin/family members of the personswho died due to disaster, to be paid from SDRF and NDRF. Section 12of DMA 2005, which has been heavily relied upon, reads as under:

12. Guidelines for minimum standards of relief. —TheNational Authority shall recommend guidelines for the minimum standardsof relief to be provided to persons affected by disaster, which shallinclude,—

(i) the minimum requirements to be provided in the relief campsin relation to shelter, food, drinking water, medical coverand sanitation;

(ii) the special provisions to be made for widows and orphans;

(iii) ex gratia assistance on account of loss of life as alsoassistance on account of damage to houses and forrestoration of means of livelihood;

(iv) such other relief as may be necessary.

8.1 It is the case on behalf of the respective petitioners that asmandated by Section 12 of DMA 2005, the National Authority shall haveto recommend guidelines for the minimum standards of relief to beprovided to persons affected by disaster, which shall include ex gratiaassistance on account of loss of life… [Section 12(iii)].

8.2 On the other hand, it is the case on behalf of the Union ofIndia that the word “shall” used in Section 12 may be read as “may” andit 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 assuch by providing various schemes and by taking various steps the A

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AGovernment has already made a provision/provided the minimumstandards of relief by making provision from NDRF/SDRF, which canbe said to be reliefs under Section 12 of DMA 2005. It is also the caseon behalf of the Union of India that it is not the question of financialinability, but the question is to give priorities to other sectors/fields/reliefs,while taking other measures to deal with the disaster or the mitigation orBpreparedness and capacity building for dealing with the threateningdisaster situation. It is the case on behalf of the Union of India thatinstead of giving ex gratia compensation of Rs. 4 lacs to the familymembers of the deceased of the persons who have died due to Covid-19, a conscious decision has been taken by the Finance CommissionCand/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 providingfood to the BPL/migrant labourers, and not to pay ex gratia assistance.

9. While appreciating the submission on behalf of the Union ofDIndia that the word “shall” used in Section 12 of DMA 2005 may beread as “may” and the same shall not be construed as “mandatory” andmay be considered as “directory/discretionary”, the object and purposeof enactment of Disaster Management Act, 2005 and the relevantprovisions of DMA 2005 are required to be referred to and considered.

E9.1 The Disaster Management Act, 2005 has been enacted forprevention and mitigation effects of disasters and for undertaking a holistic,coordinated and prompt response to any disaster situation. It has beenenacted on disaster management to provide for requisite institutionalmechanisms for drawing up and monitoring the implementation of thedisaster management plans, ensuring measures by various wings ofFGovernment. With the above aim and object, DMA 2005 has beenenacted.

9.2 The DMA 2005 provides for setting up of a National DisasterManagement Authority under the Chairmanship of Hon’ble PrimeMinister. It also provides for constitution of State Disaster ManagementGAuthorities under the Chairmanship of the Chief Ministers and DistrictDisaster Management Authorities under the Chairmanship of DistrictMagistrates. It also provides for concerned Ministries or Departmentsto draw up department-wise plans in accordance with the national disastermanagement plan. It also provides for constitution of a National DisasterHResponse Force and setting up the National Institute of Disaster Management. It also further provides for the constitution of the NationalFund for Disaster Response and the National Fund for Disaster Mitigationand similar funds at the State and District levels. The National Authorityhas been constituted under Section 3 of DMA 2005. Section 6 providesfor power and functions of National Authority, which reads as under:

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6. Powers and functions of National Authority. —(1)Subjectto the provisions of this Act, the National Authority shall have theresponsibility for laying down the policies, plans and guidelines fordisaster management for ensuring timely and effective responseto disaster.

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(a) lay down policies on disaster management; (b)approve the National Plan;

(c) approve plans prepared by the Ministries or DepartmentsDof the Government of India in accordance with the NationalPlan; (d)lay down guidelines to be followed by the State Authoritiesin drawing up the State Plan; (e)lay down guidelines to be followed by the different Ministriesor Departments of the Government of India for the purposeof integrating the measures for prevention of disaster orthe mitigation of its effects in their development plans andprojects; E

(f) coordinate the enforcement and implementation of the policyand plan for disaster management; F

(g) recommend provision of funds for the purpose of mitigation; (h)provide such support to other countries affected by majordisasters as may be determined by the Central Government; G

(i) take such other measures for the prevention of disaster, orthe mitigation, or preparedness and capacity building fordealing with the threatening disaster situation or disaster asit may consider necessary; (j)lay down broad policies and guidelines for the functioningof the National Institute of Disaster Management; H

964SUPREME COURT REPORTS

A(3)The Chairperson of the National Authority shall, in the case ofemergency, have power to exercise all or any of the powers ofthe National Authority but exercise of such powers shall be subjectto ex post facto ratification by the National Authority.

9.3 Section 7 of the Act provides for constitution of advisoryBcommittee by National Authority which shall consist of experts in thefield of disaster management and having practical experience of disastermanagement at the national, State or district level to makerecommendations on different aspects of disaster management. Section8 of the Act provides for constitution of National Executive Committeeto assist the National Authority in the performance of its functions underCthe Act. Section 10 provides for powers and functions of NationalExecutive Committee and the National Executive Committee shall assistthe National Authority in the discharge of its functions and have theresponsibility for implementing the policies and plans of the NationalAuthority and ensure the compliance of directions issued by the CentralDGovernment for the purpose of disaster management in the country.Section 10 of DMA 2005 reads as under:

“10. Powers and functions of National ExecutiveCommittee. —(1)The National Executive Committee shall assistthe National Authority in the discharge of its functions and haveEthe responsibility for implementing the policies and plans of theNational Authority and ensure the compliance of directions issuedby the Central Government for the purpose of disaster managementin the country.

(2) Without prejudice to the generality of the provisions containedFin sub-section (1), the National Executive Committee may—

(a) act as the coordinating and monitoring body for disastermanagement; (b)prepare the National Plan to be approved by the NationalAuthority; G

(c) coordinate and monitor the implementation of the NationalPolicy; (d)lay down guidelines for preparing disaster management plansby different Ministries or Departments of the Governmentof India and the State Authorities;H

(e) provide necessary technical assistance to the StateGovernments and the State Authorities for preparing theirdisaster management plans in accordance with the guidelineslaid down by the National Authority; (f)monitor the implementation of the National Plan and theplans prepared by the Ministries or Departments of theGovernment of India; (g)monitor the implementation of the guidelines laid down bythe National Authority for integrating of measures forprevention of disasters and mitigation by the Ministries orDepartments in their development plans and projects; (h)monitor, coordinate and give directions regarding themitigation and preparedness measures to be taken bydifferent Ministries or Departments and agencies of theGovernment;

(i) evaluate the preparedness at all governmental levels forthe purpose of responding to any threatening disastersituation or disaster and give directions, where necessary,for enhancing such preparedness; (j)plan and coordinate specialised training programme fordisaster management for different levels of officers,employees and voluntary rescue workers; (k)coordinate response in the event of any threatening disastersituation or disaster;

(l) lay down guidelines for, or give directions to, the concernedMinistries or Departments of the Government of India, theState Governments and the State Authorities regardingmeasures to be taken by them in response to any threateningdisaster situation or disaster; (m)require any department or agency of the Government tomake available to the Na material resources as are availablewith it for the purposes of emergency response, rescue andrelief; (n)advise, assist and coordinate the activities of the Ministriesor Departments of the Government of India, State A

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Authorities, statutory bodies, other governmental or non-governmental organisations and others engaged in disastermanagement; A

(o) provide necessary technical assistance or give advice tothe State Authorities and District Authorities for carryingBout their functions under this Act; (p)promote general education and awareness in relation todisaster management; and (q)perform such other functions as the National Authority mayrequire it to perform.”

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9.4 Section 12 provides for the National Authority to recommendguidelines for the minimum standards of relief to be provided to personsaffected by disaster, and which shall include …. (iii) ex gratia assistanceon account of loss of life as also assistance on account of damageto houses and for restoration of means of livelihood. Section 12reads as under:D

12. Guidelines for minimum standards of relief. —TheNational Authority shall recommend guidelines for the minimumstandards of relief to be provided to persons affected by disaster,which shall include, —

E(i)the minimum requirements to be provided in the relief campsin relation to shelter, food, drinking water, medical coverand sanitation;

(ii) the special provisions to be made for widows and orphans;

(iii) ex gratia assistance on account of loss of life as alsoFassistance on account of damage to houses and forrestoration of means of livelihood;

(iv) such other relief as may be necessary.

9.5 Section 19 provides for similar guidelines for minimum standardsof relief by the State Authority. As per Section 46, the Central GovernmentGhas to constitute a fund to be called the National Disaster ResponseFund (NDRF) for meeting any threatening disaster situation or disaster.As per sub-section 2 of Section 46, the NDRF shall be made available tothe National Executive Committee to be applied towards meeting theexpenses for emergency response, relief and rehabilitation in accordancewith the guidelines laid down by the Central Government in consultationH

with the National Authority. Over and above the NDRF, the CentralGovernment may also constitute a fund to be called the National DisasterMitigation Fund for projects exclusively for the purpose of mitigation. Asimilar disaster response fund is to be constituted by the State Authority,which is known as State Disaster Response Fund (SDRF); DistrictDisaster Response Fund; State Disaster Mitigation Fund and DistrictDisaster Mitigation Fund as per Section 48 of DMA 2005.

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9.6 “Disaster: as defined under Section 2(d) of DMA 2005 meansa catastrophe, mishap, calamity or grave occurrence in any area, arisingfrom natural or manmade causes, or by accident or negligence whichresults in substantial loss of life or human suffering or damage to, anddestruction of, property, or damage to, or degradation of, environment,and is of such a nature or magnitude as to be beyond the coping capacityof the community of the affected area.

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“Disaster Management” is also defined under Section 2(e) of DMA2005, which reads as under:

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(e) “disaster management” means a continuous and integratedprocess of planning, organising, coordinating and implementingmeasures 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 severityEor consequences;

(iii) capacity-building;

(iv) preparedness to deal with any disaster;

(v) prompt response to any threatening disaster situation orFdisaster;

(vi) assessing the severity or magnitude of effects of anydisaster;

(vii) evacuation, rescue and relief;

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(viii) rehabilitation and reconstruction

As per Section 2(i), “mitigation” means measures aimed atreducing the risk, impact or effects of a disaster or threatening disastersituation. As per Section 2(m) “preparedness” means the state ofreadiness to deal with a threatening disaster situation or disaster and theeffects thereof.

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A10. Considering the Statement of Objects and Reasons forenactment 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 minimumBstandards of relief to be provided to persons affected by disastersincluding 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 veryclear and the same can be in tune with the Statement of Objects andCReasons for enactment of DMA 2005 and the functions and powers ofthe National Authority. One of the Objects and Purposes is “mitigation”.As per Section 6(1) and Sub-section 2(g) of Section 6, the NationalAuthority shall have the responsibility for laying down the policies, plansand guidelines for disaster management and recommend provision ofDfunds for the purpose of mitigation. Section 12 specifically provides thatthe National Authority “shall” recommend guidelines for theminimumstandards of reliefto be provided to persons affected by disaster, which“shall” include, (i) the minimum requirements to be provided in the reliefcamps in relation to shelter, food, drinking water, medical cover andsanitation; (ii) the special provisions to be made for widows and orphans;Eand (iii) ex gratia assistance on account of loss of life as alsoassistance on account of damage to houses and for restoration ofmeans of livelihood. Therefore, it is the statutory duty cast upon theNational Authority to recommend guidelines for the minimum standardsof relief to be provided to persons affected by disaster, which shall includeFthe reliefs, as stated hereinabove. The language used in the provision isvery plain and unambiguous. As per the settled proposition of law laiddown by this Court in a catena of decisions, when the language of theprovision is plain and unambiguous, statutory enactments must ordinarilybe construed according to its plain meaning. The beneficial provision ofthe legislation must be literally construed so as to fulfil the statutoryGpurpose and not to frustrate it. (See Bhavnagar University (supra)(para 26).

10.2 Under Section 12 of DMA 2005, the National Authority ismandated to recommend guidelines for the minimum standards of relief.Minimum standards of relief are, as such, not defined under the Act.HThen what is somewhat intended by the legislature while providing minimum standards of relief is to be gathered from Section 12 itself. Exgratia assistance on account of loss of life as also assistance on accountof damage to houses and for restoration of means of livelihood thereforecan be said to be part of minimum standards of relief of which the NationalAuthority is required to recommend guidelines.

10.3 As observed by this Court in the case of Bachahan Devi(supra), even to interpret the legal import of the word “may”, the Courthas to consider various factors, namely, the object and the scheme ofthe Act, the context and the background against which the words havebeen used, the purpose and the advantages sought to be achieved by theuse of this word, and the like. In paragraph 18, it is observed and held asunder:

“18. It is well settled that the use of the word “may” in a statutoryprovision would not by itself show that the provision is directory innature. In some cases, the legislature may use the word “may” asa matter of pure conventional courtesy and yet intend a mandatoryforce. In order, therefore, to interpret the legal import of the word“may”, the court has to consider various factors, namely, the objectand the scheme of the Act, the context and the background againstwhich the words have been used, the purpose and the advantagessought to be achieved by the use of this word, and the like. It isequally well settled that where the word “may” involves adiscretion coupled with an obligation or where it confers a positivebenefit to a general class of subjects in a utility Act, or where thecourt advances a remedy and suppresses the mischief, or wheregiving the words directory significance would defeat the very objectof the Act, the word “may” should be interpreted to convey amandatory force. As a general rule, the word “may” is permissiveand operative to confer discretion and especially so, where it isused in juxtaposition to the word “shall”, which ordinarily isimperative as it imposes a duty. Cases, however, are not wantingwhere the words “may”, “shall” and “must” are usedinterchangeably. In order to find out whether these words arebeing used in a directory or in a mandatory sense, the intent of thelegislature should be looked into along with the pertinentcircumstances.”

10.4 Therefore, to construe the word “shall” as “may” and asdirectory/discretionary, the very object and purpose of the Act will bedefeated. The word “shall” used twice in Section 12 significantly imposes A

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Aa duty cast upon the National Authority to issue guidelines for theminimum standards of relief which shall include ex gratia assistance onaccount of loss of life as also assistance on account of damage to housesand for restoration of means of livelihood. Nothing is on record that anyguidelines/decision has been taken by the National Authorityrecommending guidelines for the minimum standards of relief in the formBof ex gratia assistance on account of loss of life of a person who hasdied due to Covid-19. At this stage, it is required to be noted and it is notin dispute and cannot be disputed that Covid-19 pandemic is a disasterwithin the meaning of Section 2(d) of DMA 2005. Not only that even inthe letter dated 14.03.2020, the Central Government has declared Covid-C19 pandemic as “notified disaster”. Even, all other steps including theguidelines 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 themeaning of Section 2 (d) of DMA 2005, the provisions of Section 12 ofDMA 2005 shall be applicable and it has to be applied to the Covid-19Dpandemic which is declared as “notified disaster”/national disaster. Thesubmission on behalf of the Union of India that considering the peculiarnature of the Covid-19 pandemic, even if Covid-19 pandemic is declaredand/or considered as a disaster, Section 12 of DMA 2005 may not beapplicable and/or the word “shall” should be construed as “may” asEwhen DMA 2005 was enacted, the legislature might not have visualisedthat such a pandemic/disaster would occur which would have a long-time effect/impact. The aforesaid cannot be accepted for the simplereason that every disaster as defined under Section 2(d) of the Act is adisaster and once it is declared as a “notified disaster”/national disaster/disaster, Section 12 of DMA 2005 shall be applicable and is mandatorilyFto be complied with, with respect to any disaster, within the meaning ofSection 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 gratiaassistance on account of loss of life due to Covid-19 pandemic whileGrecommending guidelines for minimum standards of relief to be providedto the persons affected by the disaster/Covid-19 pandemic. Once, it isobserved 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 NationalAuthority to recommend guidelines for the minimum standards of reliefwhich shall include ex gratia assistance on account of loss of life, notHrecommending any Guidelines for ex gratia assistance on account of loss of life dueto Covid-19 pandemic, while recommending other guidelines for theminimum standards of relief, it can be said that the National Authorityhas failed to perform its statutory duty cast under Section 12 and thereforea writ of mandamus is to be issued to the National Authority to recommendappropriate guidelines for ex gratia assistance on account of loss of lifedue to Covid-19 pandemic while recommending guidelines for theminimum standards of relief to be provided to persons affected bydisaster/Covid-19 pandemic as mandatory under Section 12 of DMA2005.

11. Now the next question which is posed for the consideration ofthis Court is, what further relief the petitioners are entitled to. Whethera writ of mandamus can be issued directing the Central Government/National Authority/State Governments to pay a particular amount byway of ex gratia assistance, more particularly Rs. 4 lacs, as prayed bythe petitioners? Whether the Court can/may direct to pay a particularamount by way of ex gratia assistance?

11.1 The scope of judicial review is discussed hereinabove. Itcannot also be disputed that Covid-19 pandemic is a peculiar disaster,which the country and the world has experienced in a long time. It hasan extraordinary spread and impact from that of other natural disaster/disasters. Therefore, its extreme spread and impact requires an approachdifferent from the one that is applied to other disasters/natural disasters.Other natural disasters would have a different effect/impact. Covid-19pandemic is having an on-going impact/effect. The pandemic is still notover in the country as also the world and it is extremely difficult topredict with accuracy, it’s further trajectory, mutations and waves.Looking to its peculiarity and the impact and effect, the Covid-19pandemic is required to be viewed differently from other disasters. Thereis a need to focus simultaneously on prevention, preparedness, mitigationand recovery, which calls for a different order of mobilization of bothfinancial and technical resources. The Government is required to and asso stated in the counter affidavit and as submitted by Shri Mehta, learnedSolicitor General, a huge fund is required for the purpose of creating theinfrastructure, hospitals, ventilators, oxygen, testing, vaccination etc.According to the Central Government, the Government has bonafidelyand in the larger public interest has decided the priorities and focusedsimultaneously on prevention, preparedness, mitigation and recovery.

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AAccording to the official figure, the pandemic has caused more than3,85,000 deaths, the same is likely to increase further. It cannot be disputedthat these deaths have affected the families from all classes – the richand 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, andBas observed hereinabove, the impact and effect of the present pandemic/disaster would be different from the other disasters/natural disasters forwhich ex gratia assistance is provided. There shall not be any justificationto provide for the same/similar amount by way of ex gratia assistance asprovided in the case of other disasters/natural disaster, i.e., Rs. 4 lacs.C12. As observed hereinabove, the Government has to decide itsown 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 thecommon people/migrants, transportation to migrants etc. The GovernmentDis also required to deal with the effect of the pandemic on the economy.As observed hereinabove, a huge amount is required to be spent fromthe NDRF/SDRF, even while providing minimum standards of relief. Itcannot be disputed that ex gratia assistance would also have financialimplications and which may affect the other minimum standards of reliefto be provided to the persons affected by disaster. No State or countryEhas unlimited resources. That is why it only announces the financialreliefs/packages to the extent it is possible. When the Government formsits policy, it is based on a number of circumstances, on facts, law includingconstraint based governmental resources. As observed by this Court inthe case of Nandlal Jaiswal (supra), the Government, as laid down inFPermian Basin Area Rate Cases, 20 L Ed (2d) 312, is entitled to makepragmatic adjustments which may be called for by particularcircumstances. As observed by this Court hereinabove, the function ofthe Court is to see that lawful authority is not abused but not to appropriateto itself the task entrusted to that authority.

G Therefore, the Courts would be very slow to interfere withpriorities fixed by the government in providing reliefs, unless it is patentlyarbitrary and/or not in the larger public interest at all. The Governmentshould be free to take policy decisions/decide priorities (of course toachieve the ultimate goal of DMA 2005, government should be free totake its own decisions/priorities while providing minimum standards ofH

relief and even towards preparedness, mitigation, prevention andrecovery), subject to the availability of the resources/funds and the amountto be spent towards other reliefs on the aid and advice of the expertsand looking to the circumstances from time to time. Therefore, no reliefcan be granted to direct the National Authority/Central Government/State Governments to pay a particular amount towards ex gratiaassistance on account of loss of life to the family members of the personswho have died due to Covid-19. It should be left to the wisdom of NationalAuthority while considering the guidelines/recommendations of theFinance Commission in its XVth Finance Commission Report and thefunds required for other reliefs/priorities. The recommendations of theFinance commission provide sufficient guidelines. However, at the sametime, as observed hereinabove, while recommending guidelines for theminimum standards of relief to be provided to persons affected bydisaster/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 lifeis part of minimum standards of relief, which must be considered by theNational Authority while providing for the minimum standards of reliefto be provided to the persons affected by disaster – in the present caseCovid-19 pandemic.

12.1 At this stage, it is required to be noted and it is reported thatsome States are paying ex gratia assistance to the family members ofthe persons who have died due to Covid-19 pandemic, like State of Biharpaying 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 ChiefMinister Relief Fund or other relief funds, but not from SDRF. To avoidany heart-burning and discriminatory treatment, it would be appropriatefor the National Authority to recommend uniform guidelines whileproviding for the minimum standards of relief in the form of ex gratiaassistance on account of loss of life, as mandated under Section 12 ofthe Act. However, at the same time, it will always be open for theconcerned States to provide for ex gratia assistance on account of lossof life and other reliefs from their own relief funds (other than SDRF) asit would be a policy decision by the concerned States and they mayprovide such other relief/reliefs, looking to the availability of the fund.However, merely because some States might have been paying the exgratia assistance on account of loss of life to the family members of thepersons who have died due to Covid-19 pandemic, for the reasons stated AB

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Ahereinabove, no writ of mandamus can be issued directing the CentralGovernment/State Governments to pay a particular sum/amount by wayof ex gratia assistance as the utilization of the fund/money by the CentralGovernment would depend upon the priorities fixed by them whichincludes the money/fund to be used for prevention, preparedness,mitigation, recovery etc. Therefore, what amount to be paid by way ofBex gratia assistance to the family members of the persons who died dueto Covid-19 pandemic should be left to the National Authority/CentralGovernment.

13. Now so far as the prayer to issue appropriate direction to therespondents – State Governments to issue an official document statingCCovid-19 related as cause of death, to the family members of the deceasedwho died due to Covid-19 is concerned, it is required to be noted that itis the duty of the every authority to issue accurate/correct deathcertificates stating the correct and accurate cause of death, so that thefamily members of the deceased who died due to Covid-19 may notDface any difficulty in getting the benefits of the schemes that may bedeclared by the Government for the death of the deceased, who dieddue to Covid-19. In the death certificate also, if a person has died due toCovid-19 and/or any other complications/disease due to Covid-19, it shouldbe specifically mentioned in the death certificate.E We have gone through the counter affidavit filed on behalf of theUnion Government on the aforesaid and the guidelines issued by theICMR as well as the format and the guidelines issued to the RegisteringAuthorities of the concerned State Governments. However, we feel thatthe procedure should be as simplified as it can be. Therefore, a simplifiedprocedure/guidelines is/are required to be issued by the CentralFGovernment and/or appropriate authority for issuance of an officialdocument/death certificate stating the exact cause of death, i.e., “Deathdue to Covid-19”, to the family members of the deceased who died dueto Covid-19. For guidance, such guidelines may provide if a person hasdied after he was found covid positive and he has died within two toGthree months, either in the hospital or outside the hospital or at home, thedeath certificate/official document must be issued to the family membersof 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 othercomplications, however, due to Covid-19. In the guidelines, it may alsobe provided that if the family member(s) of the deceased who died dueH

to Covid-19 has/have any grievance that in the death certificate/officialdocument the correct/exact cause of death is not mentioned, he/shemust be provided with some remedy to approach the appropriate authorityto get the death certificate/official document corrected.

14. Now so far as the prayer to issue an appropriate directiondirecting the respondents – State Governments to fulfil their obligationto take care of the victims of the calamity and their family members isconcerned, the prayer sought is too vague. Even otherwise, consideringthe counter affidavit filed on behalf of the Union of India it demonstratesthe various reliefs declared by the Union Government. As such, nomandamus can be issued directing the respondents – State Governmentsto declare a particular policy/relief/relief package in general and thesame shall be within the domain of policy decision and would have financialimplications also.

15. Now so far as one additional relief sought in Writ Petition(Civil) No. 539 of 2021 to issue appropriate direction directing therespondents – Union of India and others to provide social security in theform of insurance is concerned, from the XVth Finance CommissionReport, it appears that the Finance Commission in its report has alreadymade recommendations of the same and from the counter affidavit itappears that the Union Government has actively considering the samein consultation with other stakeholders. We hope and trust that the UnionGovernment will consider the recommendations made by the FinanceCommission made in its XVth Finance Commission Report and take anappropriate decision in consultation with other stakeholders and theexperts.

Even otherwise, from the counter affidavit filed on behalf of theUnion of India, it appears that the Central Government has alreadylaunched the Pradhan Mantri Garib Kalyan Package under which acomprehensive personal accident cover of Rs. 50 lakhs have beenprovided to 22.12 lakh health care providers throughout the country,including community health workers and private health workers whomay have been in direct contact and care of Covid-19 patients and maybe at risk of being impacted/infected by this. It is further reported thaton account of unprecedented situation, private hospital staff/retired/volunteer/local urban bodies/contract/daily wage/ad-hoc/outsourced staffrequisitioned by States/Central Hospitals/autonomous hospitals of Central/States/Union Territories, AIIMS & Institute of National Importance (INI)/

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Ahospitals of Central Ministries specifically drafted for care of Covid-19patients are also covered under the scheme. The benefits under the saidscheme have been extended for a further period of 180 days with effectfrom 24.04.2021. Therefore, it appears that sufficient care has beentaken. However, some class might have been left out, like those personsworking at premortem. Thus, the Union Government may look into theBsame and cover them also who might have been left out and who can besaid to be in direct contact of dead bodies of Covid-19 patients. Even,Shri Tushar Mehta, learned Solicitor General has also stated at the Barthat the Union Government/appropriate authority shall look into the same.

16. In view of the above and for the reasons stated above, weCdispose of the present writ petitions with the following directions:

1) We direct the National Disaster Management Authority torecommend guidelines for ex gratia assistance on accountof loss of life to the family members of the persons whodied due to Covid-19, as mandated under Section 12(iii) ofDDMA 2005 for the minimum standards of relief to beprovided to the persons affected by disaster – Covid 19Pandemic, over and above the guidelines alreadyrecommended for the minimum standards of relief to beprovided to persons affected by Covid-19. However, whatEreasonable amount to be offered towards ex gratiaassistance is left to the wisdom of National Authority whichmay consider determining the amount taking intoconsideration the observations made hereinabove, such as,requirement/availability of the fund under the NDRF/SDRFfor other reliefs and the priorities determined by the NationalFAuthority/Union Government and the fund required for otherminimum standards of relief and fund required forprevention, preparedness, mitigation and recovery and otherreliefs to carry out the obligation under DMA 2005. Theaforesaid exercise and appropriate guidelines beGrecommended, as directed hereinabove, within a period ofsix weeks from today;

2) The Appropriate Authority is directed to issue simplifiedguidelines for issuance of Death Certificates/officialdocument stating the exact cause of death, i.e., “Death dueHto Covid-19”, to the family members of the deceased who died due to Covid-19. While issuing such guidelines, theobservations made hereinabove in paragraph 13 be bornein mind. Such guidelines may also provide the remedy tothe family members of the deceased who died due to Covid-19 for correction of the death certificate/official documentissued by the appropriate authority, if they are not satisfiedwith 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 therecommendations made by the Finance Commission in itsXVth Finance Commission Report bearing in mind paragraph8.131 in consultation with other stakeholders and experts.

17. As a sequel to the above, all pending interlocutory applicationsalso stand disposed of.

Devika Gujral

Writ Petitions disposed of.

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