The Supreme Court on Wednesday said the Centre failed to perform its statutory duty, under Section 12 of the Disaster Management Act (DMA), to issue minimum standards of relief for families of those people who lost their lives to Covid-19. It directed the National Disaster Management Authority (NDMA) to recommend guidelines for ex gratia assistance, on account of loss of life, to families concerned, within 6 weeks.
A bench comprising Justices Ashok Bhushan and M.R. Shah said: “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..”
The bench noted that if the statutory authority has failed to perform its statutory duty under the statute or constitutional duty, the court would be absolutely justified in issuing a writ of mandamus directing the authority to perform its statutory duty.
The Centre had argued that the term “shall” used in Section 12 of the DMA, will have to be read as “may”, thereby making the provision directory/discretionary and not mandatory, in the light of peculiar facts and comprehensive steps taken by the government in mitigating the pandemic.
Contesting the ex gratia, it argued that funds have been sanctioned for creating infrastructure, hospitals, testing, vaccination, ICU facilities and other allied matters including providing food to the BPL/migrant labourers, and not to pay ex gratia assistance.
However, the bench, in its 66-page judgment, held: “The beneficial provision of the legislation must be literally construed so as to fulfil the statutory purpose and not to frustrate it.”
It observed if Centre were to construe the word “shall” as “may”, in the act, it would “defeat its purpose” and object to issue guidelines for minimum standards of relief, including ex-gratia assistance in the Covid-19 pandemic, which is a disaster.
The bench emphasised that the word “shall” used twice in Section 12 of the act 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.
It did not accept the Centre’s contention that even if Covid-19 pandemic is declared and/or considered as a disaster, Section 12 may not be applicable and/or the word “shall” should be construed as “may” as when the act came. The Centre emphasised that the legislature might not have visualised that such a pandemic/disaster would occur which would have a long-time effect/impact.
The court, however, said said it cannot be disputed that Covid-19 pandemic is a disaster within the meaning of Section 2(d) of the act. Against this backdrop, it directed the NDMA to recommend guidelines, within 6 weeks, for ex gratia assistance to family members of those persons who died due to Covid-19.
The bench emphasised it is mandated under Section 12(iii) for the minimum standards of relief to be provided to the persons affected by disaster. However, the court refrained from passing any direction to fix the amount of ex-gratia payment.
“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,” said the bench.
The top court order came on PILs which were filed by advocates Gaurav Kumar Bansal and Reepak Kansal seeking court’s intervention for payment of Rs 4 lakh ex-gratia amount to the Covid victims’ families.
The bench held that it should be left to the wisdom of national authority while considering the guidelines/recommendations of the Finance Commission in its 15th Finance Commission Report and the funds required for other reliefs/priorities.
These kind of judgements are a challenge to the constitutional authority of the executive are a fine example of judicial overreach. Such judgements also suffer from the vice of being unimplementable.
(The story has been published via a syndicated feed.)
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