Reepak Kansal vs Union of India and Others

Covid-19 Pandemic: Disaster Management Act, 2005 – ss. 12, 2(d), 2(e), 2(i), 2(m), 6, 10, 19, 46 and 48 – Prayer for directions to National Disaster Management Authority (NDMA)/Central Government/State Governments to provide ex gratia monetary compensation to the families of the deceased persons who succumbed to the pandemic of Covid-19 – Whether a writ of mandamus can be issued directing the Central Government/National Authority/State Governments to pay a particular amount by way of ex gratia assistance, more particularly Rs. 4 lacs, as prayed by the petitioners – Whether the Court can/may direct to pay a particular amount by way of ex gratia assistance – Held: The Government should be free to take policy decisions/decide priorities (of course to achieve the ultimate goal of DMA 2005, government should be free to take its own decisions/priorities while providing minimum standards of relief and even towards preparedness, mitigation, prevention and recovery), subject to the availability of the resources/funds and the amount to be spent towards other reliefs on the aid and advice of the experts and looking to the circumstances from time to time – Therefore, no relief can be granted to direct the National Authority/Central Government/State Governments to pay a particular amount towards ex gratia assistance on account of loss of life to the family members of the persons who have died due to Covid-19 – Some States are paying ex gratia assistance to the family members of the persons who have died due to Covid-19 pandemic – However, the same is paid from the Chief Minister Relief Fund or other relief funds, but not from State Disaster Response Fund (SDRF) – To avoid any heart-burning and discriminatory treatment, it would be appropriate for the National Authority to recommend uniform guidelines while providing for the minimum standards of relief in the form of ex gratia assistance on account of loss of life, as mandated under s.12 of the Act – However, at the same time, it will always be open for the concerned States to provide for ex gratia assistance on account of loss of life and other reliefs from their own relief funds (other than SDRF) as it would be a policy decision by the concerned States and they may provide such other relief/reliefs, looking to the availability of the fund – However, merely because some States might have been paying the ex gratia assistance on account of loss of life to the family members of the persons who have died due to Covid-19 pandemic, no writ of mandamus can be issued directing the Central Government/State Governments to pay a particular sum/amount by way of ex gratia assistance as the utilization of the fund/money by the Central Government would depend upon the priorities fixed by them which includes the money/fund to be used for prevention, preparedness, mitigation, recovery etc. – Therefore, what amount to be paid by way of ex gratia assistance to the family members of the persons who died due to Covid-19 pandemic should be left to the National Authority/Central Government.

Covid-19 Pandemic: Disaster Management Act, 2005 – ss. 2(d), 2(e), 2(i), 2(m), 6, 10, 12, 19, 46 and 48 – Prayer for directions to the respondents/State Governments to fulfill their obligation(s) to take care of victims of the calamity and their family members – Held: The prayer is too vague – Even otherwise, considering the counter affidavit filed on behalf of the Union of India it demonstrates the various reliefs declared by the Union Government – As such, no mandamus can be issued directing the respondents – State Governments to declare a particular policy /relief/relief package in general and the same shall be within the domain of policy decision and would have financial implications also.

Covid-19 Pandemic: Disaster Management Act, 2005 – ss. 2(d), 2(e), 2(i), 2(m), 6, 10, 12, 19, 46 and 48 – Prayer for directions to respondents-State Governments to issue any official document stating cause of death, to the family members of the deceased who died due to Covid-19 – Held: It is the duty of the every authority to issue accurate/correct death certificates stating the correct and accurate cause of death, so that the family members of the deceased who died due to Covid-19 may not face any difficulty in getting the benefits of the schemes that may be declared by the Government for the death of the deceased, who died due to Covid19 – In the death certificate also, if a person has died due to Covid19 and/or any other complications/disease due to Covid-19, it should be specifically mentioned in the death certificate – The procedure should be as simplified as it can be – Appropriate Authority directed to issue simplified guidelines for issuance of Death Certificates/official document stating the exact cause of death, i.e., “Death due to Covid-19”, to the family members of the deceased who died due to Covid-19 – Such guidelines may also provide the remedy to the family members of the deceased who died due to Covid-19 for correction of the death certificate/official document issued by the appropriate authority, if they are not satisfied with the cause of death mentioned in the death certificate/official document issued by the appropriate authority.

Covid-19 Pandemic: Disaster Management Act, 2005 – ss. 2(d), 2(e), 2(i), 2(m), 6, 10, 12, 19, 46 and 48 – Prayer for directions to the respondents-Union of India and others to provide social security and rehabilitation to the victims of Covid-19 – Held: From the XVth Finance Commission Report, it appears that the Finance Commission in its report has already made recommendations of the same and from the counter affidavit it appears that the Union Government has been actively considering the same in consultation with other stakeholders – Even otherwise, from the counter affidavit filed on behalf of the Union of India, it appears that the Central Government has already launched the Pradhan Mantri Garib Kalyan Package under which a comprehensive personal accident cover of Rs. 50 lakhs have been provided to 22.12 lakh health care providers throughout the country, including community health workers and private health workers who may have been in direct contact and care of Covid-19 patients and may be at risk of being impacted/infected by this – It is further reported that on account of unprecedented situation, private hospital staff/retired/volunteer/local urban bodies/contract/daily wage/ad-hoc/outsourced staff requisitioned by States/Central Hospitals/ autonomous hospitals of Central /States/Union Territories, AIIMS & Institute of National Importance (INI)/hospitals of Central Ministries specifically drafted for care of Covid-19 patients are also covered under the scheme – The benefits under the said scheme have been extended for a further period of 180 days with effect from 24.04.2021 – Therefore, it appears that sufficient care has been taken – However, some class might have been left out, like those persons working at pre-mortem – Thus, the Union Government may look into the same and cover them also who might have been left out and who can be said to be in direct contact of dead bodies of Covid-19 patients – The Union of India to take appropriate steps on the recommendations made by the Finance Commission in its XVth Finance Commission Report bearing in mind paragraph 8.131 in consultation with other stakeholders and experts.

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

Administrative Law: Policy decision – Interference with – Scope – Held: When the Government forms its policy, it is based on a number of circumstances, on facts, law including constraint based governmental resources – The Government is entitled to make pragmatic adjustments which may be called for by particular circumstances – The function of the Court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority – Therefore, the Courts would be very slow to interfere with priorities fixed by the government in providing reliefs, unless it is patently arbitrary and/or not in the larger public interest at all – Judicial Review.

Judicial Review: Scope of – Writ of Mandamus – When can be issued – Held: If the statutory authority/authority fails to perform its statutory duty cast under the statute or constitutional duty, a mandamus can be issued directing the authority to perform its duty cast under the statute – In such a situation, the Court would be absolutely justified in issuing a writ of mandamus directing the authority to perform its statutory duty/constitutional duty. Interpretation of Statutes: Plain meaning – Held: When the language of the provision is plain and unambiguous, statutory enactments must ordinarily be construed according to its plain meaning.

Interpretation of Statutes: Beneficial provision – Held: The beneficial provision of the legislation must be literally construed so as to fulfill the statutory purpose and not to frustrate it. Disposing of the writ petitions and also all pending interlocutory applications, the Court

HELD:1.1. In Section 12 of Disaster Management Act, 2005, the word “shall” is used twice. The intent of the legislature by using the word “shall” twice is very clear and the same can be in tune with the Statement of Objects and Reasons for enactment of DMA 2005 and the functions and powers of the National Authority. One of the Objects and Purposes is “mitigation”. As per Section 6(1) and Sub-section 2(g) of Section 6, the National Authority shall have the responsibility for laying down the policies, plans and guidelines for disaster management and recommend provision of funds for the purpose of mitigation. Section 12 specifically provides that the National Authority “shall” recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster, which “shall” include,

(i) the minimum requirements to be provided in the relief camps in relation to shelter, food, drinking water, medical cover and sanitation; (ii) the special provisions to be made for widows and orphans; and (iii) ex gratia assistance on account of loss of life as also assistance on account of damage to houses and for restoration of means of livelihood. Therefore, it is the statutory duty cast upon the National Authority to recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster, which shall include the reliefs, as stated hereinabove. The language used in the provision is very plain and unambiguous. As per the settled proposition of law laid down by this Court in a catena of decisions, when the language of the provision is plain and unambiguous, statutory enactments must ordinarily be construed according to its plain meaning. The beneficial provision of the legislation must be literally construed so as to fulfil the statutory purpose and not to frustrate it. [Para 10.1][968-C-G]

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

1.3. Even to interpret the legal import of the word “may”, the Court has to consider various factors, namely, the object and the scheme of the Act, the context and the background against which the words have been used, the purpose and the advantages sought to be achieved by the use of this word, and the like. [Para 10.3][969-B-C]

1.4. To construe the word “shall” as “may” and as directory/discretionary, the very object and purpose of the Act will be defeated. The word “shall” used twice in Section 12 significantly imposes a duty cast upon the National Authority to issue guidelines for the minimum standards of relief which shall include ex gratia assistance on account of loss of life as also assistance on account of damage to houses and for restoration of means of livelihood. Nothing is on record that any guidelines/decision has been taken by the National Authority recommending guidelines for the minimum standards of relief in the form of ex gratia assistance on account of loss of life of a person who has died due to Covid-19. At this stage, it is required to be noted and it is not in dispute and cannot be disputed that Covid-19 pandemic is a disaster within the meaning of Section 2(d) of DMA 2005. Not only that even in the letter dated 14.03.2020, the Central Government has declared Covid-19 pandemic as “notified disaster”. Even, all other steps including the guidelines and SOPs are issued under the provisions of DMA 2005. Therefore, once the Covid-19 pandemic is declared as “notified disaster”/national disaster, even otherwise the same can be disaster within the meaning of Section 2 (d) of DMA 2005, the provisions of Section

12 of DMA 2005 shall be applicable and it has to be applied to the Covid-19 pandemic which is declared as “notified disaster”/national disaster. The submission on behalf of the Union of India that considering the peculiar nature of the Covid-19 pandemic, even if Covid-19 pandemic is declared and/or considered as a disaster, Section 12 of DMA 2005 may not be applicable and/or the word “shall” should be construed as “may” as when DMA 2005 was enacted, the legislature might not have visualised that such a pandemic/disaster would occur which would have a longtime effect/impact. The aforesaid cannot be accepted for the simple reason that every disaster as defined under Section 2(d) of the Act is a disaster and once it is declared as a “notified disaster”/national disaster/disaster, Section 12 of DMA 2005 shall be applicable and is mandatorily to be complied with, with respect to any disaster, within the meaning of Section 2(d) of DMA 2005. [Para 10.4][969-H; 970-A-F]

1.5. Nothing is on record that any decision/guidelines has/have been issued by the National Authority for ex gratia assistance on account of loss of life due to Covid-19 pandemic while recommending guidelines for minimum standards of relief to be provided to the persons affected by the disaster/Covid-19 pandemic. Once, it is observed as above and it is held that the word “shall” have to be read as “shall” and it is the mandatory statutory duty cast upon the National Authority to recommend guidelines for the minimum standards of relief which shall include ex gratia assistance on account of loss of life, not recommending any Guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic, while recommending other guidelines for the minimum standards of relief, it can be said that the National Authority has failed to perform its statutory duty cast under Section

12 and therefore a writ of mandamus is to be issued to the National Authority to recommend appropriate guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic while recommending guidelines for the minimum standards of relief to be provided to persons affected by disaster/Covid-19 pandemic as mandatory under Section 12 of DMA 2005. [Para 10.4][970-G-H; 971-A-B]

2.1. It cannot be disputed that Covid-19 pandemic is a peculiar disaster, which the country and the world has experienced in a long time. It has an extraordinary spread and impact from that of other natural disaster/disasters. Therefore, its extreme spread and impact requires an approach different from the one that is applied to other disasters/natural disasters. There shall not be any justification to provide for the same/similar amount by way of ex gratia assistance as provided in the case of other disasters/natural disaster, i.e., Rs. 4 lacs. [Para 11.1][971-D-E; 972-B-C]

2.2. The Government however has to decide its own priorities and reliefs to the different sectors/for different reliefs. The Government is also required to deal with the effect of the pandemic on the economy. A huge amount is required to be spent from the National Disaster Response Fund (NDRF) / State Disaster Response Fund (SDRF), even while providing minimum standards of relief. It cannot be disputed that ex gratia assistance would also have financial implications and which may affect the other minimum standards of relief to be provided to the persons affected by disaster. No State or country has unlimited resources. That is why it only announces the financial reliefs/packages to the extent it is possible. When the Government forms its policy, it is based on a number of circumstances, on facts, law including constraint based governmental resources. The Government is entitled to make pragmatic adjustments which may be called for by particular circumstances. The function of the Court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority. Therefore, the Courts would be very slow to interfere with priorities fixed by the government in providing reliefs, unless it is patently arbitrary and/or not in the larger public interest at all. The Government should be free to take policy decisions/decide priorities (of course to achieve the ultimate goal of DMA 2005, government should be free to take its own decisions/priorities while providing minimum standards of relief and even towards preparedness, mitigation, prevention and recovery), subject to the availability of the resources/funds and the amount to be spent towards other reliefs on the aid and advice of the experts and looking to the circumstances from time to time. Therefore, no relief can be granted to direct the National Authority/Central Government/State Governments to pay a particular amount towards ex gratia assistance on account of loss of life to the family members of the persons who have died due to Covid-19. It should be left to the wisdom of National Authority while considering the guidelines /recommendations of the Finance Commission in its XVth Finance Commission Report and the funds required for other reliefs/priorities. The recommendations of the Finance commission provide sufficient guidelines. However, at the same time, while recommending guidelines for the minimum standards of relief to be provided to persons affected by disaster/Covid-19 pandemic, the authority has to consider issuing/recommend guidelines on ex gratia assistance on account of loss of life. Ex-gratia assistance on account of loss of life is part of minimum standards of relief, which must be considered by the National Authority while providing for the minimum standards of relief to be provided to the persons affected by disaster – in the present case Covid-19 pandemic. [Para 12][972-C-H; 973-A-D]

2.3. It is reported that some States are paying ex gratia assistance to the family members of the persons who have died due to Covid-19 pandemic, like State of Bihar paying Rs. 4 lacs, Karnataka paying Rs. 1 lac and Delhi paying Rs. 50,000/-. However, it is to be noted that the same is paid from the Chief Minister Relief Fund or other relief funds, but not from SDRF. To avoid any heart-burning and discriminatory treatment, it would be appropriate for the National Authority to recommend uniform guidelines while providing for the minimum standards of relief in the form of ex gratia assistance on account of loss of life, as mandated under Section 12 of the Act. However, at the same time, it will always be open for the concerned States to provide for ex gratia assistance on account of loss of life and other reliefs from their own relief funds (other than SDRF) as it would be a policy decision by the concerned States and they may provide such other relief/reliefs, looking to the availability of the fund. However, merely because some States might have been paying the ex gratia assistance on account of loss of life to the family members of the persons who have died due to Covid-19 pandemic, no writ of mandamus can be issued directing the Central Government/State Governments to pay a particular sum/amount by way of ex gratia assistance as the utilization of the fund/money by the Central Government would depend upon the priorities fixed by them which includes the money/fund to be used for prevention, preparedness, mitigation, recovery etc. Therefore, what amount to be paid by way of ex gratia assistance to the family members of the persons who died due to Covid-19 pandemic should be left to the National Authority/Central Government. [Para 12.1][973-E-H; 974-A-B]

3. It is the duty of the every authority to issue accurate/correct death certificates stating the correct and accurate cause of death, so that the family members of the deceased who died due to Covid-19 may not face any difficulty in getting the benefits of the schemes that may be declared by the Government for the death of the deceased, who died due to Covid-19. In the death certificate also, if a person has died due to Covid-19 and/or any other complications/disease due to Covid-19, it should be specifically mentioned in the death certificate. The procedure should be as simplified as it can be. A simplified procedure/guidelines is/are required to be issued by the Central Government and/or appropriate authority for issuance of an official document/death certificate stating the exact cause of death, i.e., “Death due to Covid-19”, to the family members of the deceased who died due to Covid-19. For guidance, such guidelines may provide if a person has died after he was found covid positive and he has died within two to three months, either in the hospital or outside the hospital or at home, the death certificate/official document must be issued to the family members of the deceased who died due to Covid-19 stating the cause of death as “Died due to Covid-19”. He/she might have died even due to other complications, however, due to Covid-19. In the guidelines, it may also be provided that if the family member(s) of the deceased who died due to Covid-19 has/have any grievance that in the death certificate/official document the correct/exact cause of death is not mentioned, he/she must be provided with some remedy to approach the appropriate authority to get the death certificate/official document corrected. [Para 13][974-C-E, F-H; 975-A]

4. In so far as the prayer to issue an appropriate direction directing the respondents – State Governments to fulfil their obligation to take care of the victims of the calamity and their family members is concerned, the prayer sought is too vague. Even otherwise, considering the counter affidavit filed on behalf of the Union of India it demonstrates the various reliefs declared by the Union Government. As such, no mandamus can be issued directing the respondents – State Governments to declare a particular policy /relief/relief package in general and the same shall be within the domain of policy decision and would have financial implications also. [Para 14][975-B-C]

5. Now so far as the relief sought to issue direction to the respondents – Union of India and others to provide social security in the form of insurance is concerned, from the XVth Finance Commission Report, it appears that the Finance Commission in its report has already made recommendations of the same and from the counter affidavit it appears that the Union Government has been actively considering the same in consultation with other stakeholders. Even otherwise, from the counter affidavit filed on behalf of the Union of India, it appears that the Central Government has already launched the Pradhan Mantri Garib Kalyan Package under which a comprehensive personal accident cover of Rs. 50 lakhs have been provided to 22.12 lakh health care providers throughout the country, including community health workers and private health workers who may have been in direct contact and care of Covid-19 patients and may be at risk of being impacted/infected by this. It is further reported that on account of unprecedented situation, private hospital staff/retired/volunteer/local urban bodies/contract/daily wage/ad-hoc/outsourced staff requisitioned by States/Central Hospitals/autonomous hospitals of Central /States/UnionTerritories, AIIMS & Institute of National Importance (INI)/hospitals of Central Ministries specifically drafted for care of Covid-19 patients are also covered under the scheme. The benefits under the said scheme have been extended for a further period of 180 days with effect from 24.04.2021. Therefore, it appears that sufficient care has been taken. However, some class might have been left out, like those persons working at pre-mortem. Thus, the Union Government may look into the same and cover them also who might have been left out and who can be said to be in direct contact of dead bodies of Covid-19 patients. Even, the Solicitor General has also stated at the Bar that the Union Government/appropriate authority shall look into the same. [Para 15][975-D-E, F-H; 976-A-C]

6.1. The National Disaster Management Authority is directed to recommend guidelines for ex gratia assistance on account of loss of life to the family members of the persons who died due to Covid-19, as mandated under Section 12(iii) of DMA 2005 for the minimum standards of relief to be provided to the persons affected by disaster – Covid 19 Pandemic, over and above the guidelines already recommended for the minimum standards of relief to be provided to persons affected by Covid-19. However, what reasonable amount to be offered towards ex gratia assistance is left to the wisdom of National Authority which may consider determining the amount taking into consideration, such as, requirement/availability of the fund under the NDRF/SDRF for other reliefs and the priorities determined by the National Authority/Union Government and the fund required for other minimum standards of relief and fund required for prevention, preparedness, mitigation and recovery and other reliefs to carry out the obligation under DMA 2005. The aforesaid exercise and appropriate guidelines be recommended, as directed hereinabove, within a period of six weeks. [Para 16][976-C-G]

6.2. The Appropriate Authority is directed to issue simplified guidelines for issuance of Death Certificates/official document stating the exact cause of death, i.e., “Death due to Covid-19”, to the family members of the deceased who died due to Covid-19. While issuing such guidelines, the observations made hereinabove in paragraph 13 of the judgment be borne in mind. Such guidelines may also provide the remedy to the family members of the deceased who died due to Covid-19 for correction of the death certificate/official document issued by the appropriate authority, if they are not satisfied with the cause of death mentioned in the death certificate/official document issued by the appropriate authority. [Para 16][976-G-H; 977-A-B]

6.3. The Union of India to take appropriate steps on the recommendations made by the Finance Commission in its XVth Finance Commission Report bearing in mind paragraph 8.131 in consultation with other stakeholders and experts. [Para 16][977-B-C]

Small Scale Industrial Manufacturers Association (Regd.) v. Union of India and others, 2021 (4) SCALE

415 – relied on.

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

162 : [1981] 1 SCR 97; Khatri (2) v. State of Bihar (1981) 1 SCC 627 : [1981] 2 SCR 408; Charan Lal Sahu v. Union of India, (1990) 1 SCC 613; Samatha v. State of A.P., (1997) 8 SCC 191; and Bachahan Devi v. Nagar Nigam, Gorakhpur, (2008) 12 SCC 372 –

referred to.