July 5, 2021
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Who gets relief?

To: either/view subscribers

Good morning. If you are either the Prime Minister of India or the Chief Minister of West Bengal, you are in for a sweet surprise. Bangladesh Prime Minister Sheikh Hasina reportedly sent 2,600 kilograms of the famous Haribhanga variety of mangoes as a gift to the Indian leaders. But if your name is neither Narendra Modi nor Mamata Banerjee, alas, tough luck!


Should ex gratia assistance be given to kin of COVID-19 victims?

Last week, the Supreme Court ordered the PM-led National Disaster Management Authority (NDMA) to come up with rules for compensation to the kin of COVID-19 victims within six weeks. During the arguments based on public interest litigations, the Centre claimed that granting ex gratia to all the victims’ families was beyond the fiscal affordability of the government. However, the Supreme Court emphasized that it was the “statutory obligation” of the NDMA to offer ex gratia assistance to affected people.


Advocates Gaurav Kumar Bansal and Reepak Kansal had filed separate public interest litigations before the Supreme Court. The petitions sought ex gratia compensation of ₹4 lakh to the families of those who had lost lives due to COVID-19 or the post COVID-19 complications. Additionally, they had requested a simpler process of issuing death certificates to these patients.

An ex gratia payment is a sum of money that is voluntarily given as compensation to individuals who have suffered a loss or damage, mainly due to a moral obligation instead of a legal one.

Section 12 of Disaster Management Act 2005 states the following:

“Guidelines for minimum standards of relief — The National Authority shall recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster, which shall include, —

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

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

(iii) ex gratia assistance on account of loss of life as also assistance on account of damage to houses and for restoration of means of livelihood;

(iv) such other relief as may be necessary.”

Ex gratia for all COVID victims not feasible: Centre 

The Centre had placed several arguments stating why ex gratia payments were not mandatory in the pandemic situation. Their first claim was that paying compensation to all the victims, who accounted for nearly four lakh individuals, would pose heavy financial pressure on the State and Central governments. Due to increased expenditure in the health sector and reduced tax revenues, granting an ex gratia assistance of ₹4 lakh to each victim’s family would not feasible. 

In its affidavit, the Centre had stated that the resources of the government were limited and an ex gratia scheme would only add more burden. It would also reduce the available funds that could be used for other health and welfare schemes. The Ministry of Home Affairs (MHA) added that if an ex gratia of ₹4 lakh per person was granted, it was likely that the entire State Disaster Response Fund would be spent only on compensation policies. MHA instead proposed that focusing on health interventions, welfare schemes and economic recovery would be a more sustainable way of helping the people.

The affidavit also stated that there had been no prior incident wherein compensation was given during an ongoing disease. It also noted that no other disaster which lasted for such a long duration was granted ex gratia. Therefore, providing ex gratia for COVID-19 victims would be unfair for those affected by other such disasters. 

The Centre insisted that COVID-19 does not equate to previous natural disasters like floods or earthquakes. The nature of the pandemic was very different and therefore ex gratia relief under Disaster Management Act 2005 was merely recommendatory. 

In its final argument, the MHA stated that it was in the power of the National Authority to decide minimum standards of relief, which included ex gratia. It also argued that the Supreme Court should not intervene in the decisions taken by the Executive.

Ex gratia is the statutory obligation of NDMA: SC  

The Supreme Court claimed that the NDMA failed to perform its duty by not considering ex gratia assistance. To clarify its point, the court cited that under Section 12 of the Disaster Management Act, 2005, the NDMA had a statutory obligation to recommend minimum standards of relief, which included ex gratia assistance.  

S. B. Upadhyay, a senior advocate, argued that the Centre should fulfil its mandatory obligations under the law. He claimed that as COVID-19 had been declared a national disaster, the government must not refuse its obligation to grant compensations by stating financial constraints as a reason.

Further, the apex court dismissed the Centre’s argument that ex gratia was merely recommendatory. It stressed the use of ‘shall’ in the provisions of the Act and clarified that ex gratia assistance was mandatory in case of a disaster. Following this, the Court directed the NDMA to frame the guidelines for ex gratia for COVID patients within six weeks. 

However, the SC did not direct the Centre to fix ₹4 lakh as ex gratia, as was requested by the petitioners. The bench of judges was cognizant of the fact that “no country or state has unlimited resources.” They acknowledged that the government should deliberate financial matters based on several circumstances and priorities. Therefore, they left it to the wisdom of the national authority to determine the compensatory amount. 

In addition to the ex gratia guidelines, the Court also instructed a simplification of the death certificate issuing process. The date and the exact cause of death should be specified for COVID-19 victims. The court also noted that if the family members were not satisfied by the cause of death, there would be a provision to make necessary changes. The SC also asked the Centre to abide by the insurance schemes, as recommended by the Finance Commission Report. 

Access the full judgement here.


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