Case Title:
Reepak Kansal Vs. Union of India and Ors. Clubbed with, Gaurav Kumar Bansal Vs.Union of India and Ors
Date of Order:
June 30, 2021
Bench:
Hon’ble Justice Ashok Bhushan and Justice M.R. Shah
Parties:
Petitioner - Reepak Kansal and Gaurav Kumar Bansal
Respondent – Union of India and Ors.
Subject
The Bench of Justices Ashok Bhushan and M.R. Shah was hearing a Public Interest Litigation seeking ex gratia monetary compensation to the families of the deceased who have succumbed to the pandemic of Covid -19 in view of Section 12 of the Disaster Management Act,2005.
Important Provisions
Article 21, Constitution of India – provides the right to life and liberty.
Section 12, Disaster Management Act 2005–guidelines for minimum standards for relief
Overview
- According to Section 12 of the Disaster Management Act, 2005 (hereinafter referred to as "DMA 2005"), the two writ petitions were filed in public interest, seeking from the respondents, the Central and State Governments, ex gratia monetary compensation of Rs. 4 lacs or notified ex gratia monetary compensation to the families of the deceased who have perished in the Covid-19 pandemic.
- Additionally, it was submitted that the State Governments, who were the responders, should receive the proper directions needed to fulfil their responsibility to care for the calamity's victims and their families.
Issues Raised
- Whether COVID-19 is a disaster within the meaning of the Disaster Management Act,2005 and the citizens having been guaranteed the right to life under Article 21, are entitled to monetary relief as per Section 12 of the Act.
Arguments Advanced by the Petitioner
- Shri S.B. Upadhyay, learned Senior Advocate appeared on behalf of the petitioner and submitted that since COVID-19 is a “Notified Disaster”, provisions of the Disaster Management Act 2005 shall apply, and as per the communication dated 8.4.2015, by the Ministry of Home Affairs, an amount of 4 lakh rupees is to be paid to the victim’s family.
- Further submitted that it is not only the statutory duty of the National Authority to provide guidelines for ex gratia compensation assistance, but is the authority’s constitutional obligation as it affects Article 21 of the Constitution of India.
- It is also submitted that the word “shall” in Section 12 of the DMA 2005 should be interpreted as “mandatory”, relying upon the decision of the Supreme Court in the cases of DLF Universal Limited v. Director, Town and Country Planning Department, Haryana [(2010) 14 SCC 1] and Bhavnagar University v. Palitana Sugar Mill (P) Ltd [(2003) 2 SCC 111].
- It is submitted that relying on the decision of Swaraj Abhiyan v. Union of India, [(2016) 7 SCC 498], financial instability cannot be an excuse for disregarding statutory duties.
- The petitioner contends that it is the duty of the government to ensure that correct death certificates with the correct cause of death are issued.
Arguments Advanced by the Respondent
- Shri Tushar Mehta, learned Solicitor General submitted that various steps have been taken by the government to strategize the country’s response to Covid-19.
- Further submitted that the word “shall” in Section 12 may be read as “may” and should be read as discretion and not as mandatory.
- It is submitted that the nature of the COVID pandemic is very different from the disasters that were contemplated by the legislature while enacting DMA.The compensation that is to be paid in case of the pandemic is different from what is envisaged under Section 12 of the act, and different “Minimum Standards of Relief” are to be provided.
- It was further submitted by the state that the issue at hand is not of fiscal affordability, but of the most judicious and efficient usage of fiscal resources of the nation. The government has formulated various schemes and programmes such as the Pradhan Mantri Garib Kalyan Yojana (PMGKY) and the Prime Minister Atma Nirbhar Swastha Bharat Yojana (PMANSBY), to provide relief to COVID-affected persons.
- With regards to the issuance of death certificates, the state submitted that the ICMR has already issued guidelines and provisions regarding the same.
Judgement Analysis
- The court noted that if the authority has failed to perform its statutory/constitutional duty, the court would be absolutely justified in issuing a writ of Mandamus to direct the authority perform the said duty.
- The court while examining the object and purpose of enactment of the DMA, held that interpreting the word “shall” as “may” will defeat the very purpose behind the Act.
- Held, COVID-19 comes within the meaning of Section 2 (d) of DMA 2005 and therefore the provisions of Section 12.
- With regards to the amount of relief to be paid by the authorities, the court stated that it should be left to the wisdom of the authorities with consideration of the XVth Finance commission report.
- The court directed the NDMA to recommend guidelines for ex gratia assistance to victims of COVID-19, as well as the issuance of death certificates. The Government is directed to take appropriate steps on the recommendations by the XVth Finance Commission.
Conclusion
Justice Ashok Bhushan, one of the judges on the bench hearing this case, ordered the Union government to create a standard policy on ex-gratia payments to the families of persons who died as a result of COVID-19 within six weeks. He also acknowledged that the National Disaster Management Authority (NDMA), which is overseen by the Prime Minister, had utterly failed to carry out its mandate since it was unable to implement the compensation plan.
Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE
Click here to download the original copy of the judgement
