Supreme Court Reserves Judgment On Plea For Ex-Gratia Compensation To COVID Victims

The Supreme Court on Monday reserved the judgment in the pleas filed before Supreme Court seeking ex gratia monetary compensation of Rs. 4 lacs or notified ex gratia monetary compensation to the families of deceased who have succumbed to the pandemic of COVID-19.A Bench of Justices Ashok Bhushan and MR Shah heard the matter and directed the parties to file written submissions within three days. COURTROOM EXCHANGE In today's hearing, Senior Advocate SB Upadhyay appearing on behalf of the Petitioner Reepak Kansal, submitted to the Court that the Centre cannot use financial constraint as a ground to not meet its constitutional obligations.Mr.Upadhyay went on to submit that Section 12 of the Disaster Management Act stipulated that the National Disaster Management Authority had to frame guidelines. However, the Centre's submission that "shall" in Section 12 was to be read as "may" made the framing of the guidelines discretionary and the same was not acceptable.Since there is a statutory obligation, the Government cannot take a plea of fiscal difficulty to say that compensation cannot be granted. Reference was made to the decision in Swaraj Abhiyan v Union of India (2016) 7 SCC 498, where it was held that plea of fiscal difficulty cannot be an argument to defeat a statutory duty. Mr.Upadhyay that even insurance cover was available only for doctors on regular rolls and not for contractual doctors. "They are saying this [COVID-19] is not the kind of disaster that the Act foresaw and that it was only formulated for a one-time disaster and not recurring ones like COVID. Floods, tsunami, cyclones are also recurring", submitted Upadhyay. He stated that even by definition of disaster under Section 2(d), COVID could be categorised as a catastrophe. At this juncture, the Court enquired if the ex-gratia payment had been covered under the 2015 notification. To this, Upadhyay responded that the notification had to be extended to 2021 and he had merely sought for 4 lakhs as the scheme had stated so. "They have to frame a scheme as per their own capacity. The letter also has to be interpreted as per the situation. They are saying it is a situational interpretation and that 'shall' must be interpreted as 'may'. They must either extend the scheme or frame a new one under Section 12", stated Upadhyay. The Bench also noted that every disaster could not be judged on the same scale as different disasters had different magnitudes. Upadhyay concluded his submissions by stating that framing a scheme under Section 12 should not account for financial affordability and that doing so would render the law nugatory; that constitutional obligations could not be set aside for humanitarian needs. Advocate Gaurav Bansal, a Petitioner-in-Person, then submitted that he would co-opt the submissions of Upadhyay. He further contended that financial situations on the ground were different. "Because of our patriarchal society, the rural scenario is different. If the man of the family dies, the whole family is devastated. In that scene, this scheme can be implemented. Most of the schemes only focus on medical healthcare workers. We salute them, but there are also people who are present in armed forces, police forces and even in shamshan ghats. They have died while doing their duties. Who will take care of them? The Centre cannot just say that they cannot afford it", stated Bansal. Advocate Sumeer Sodhi, appearing for four individuals who had suffered loss of family due to the pandemic, also made his submissions. He stated that he had two points to raise – 1. The treatment of unequal disasters equally and how different States were paying different amounts of compensation; 2. He sought to be informed as to how the money for compensation was being funded. In light of this, he submitted that there was a need for a uniform scheme and a consolidated fund to discern how much was being paid and from where the payment was being done. Solicitor-General Tushar Mehta (SG), appearing for Union of India, then commenced his submissions. The SG stated that the scheme under DMA showcased that the allocation of funds had taken place with an application of mind. He submitted that as per Section 2(i) and Section 2(m), the focus of the DMA was to mitigate as well as prepare for disasters. Further, it was the Finance Commission which contributed to the NDMA as well as the SDMA. Referring to Articles 280 and 281 of the Constitution of India, the SG averred that classification and allocation of funds was done by the Finance Commission."Ultimately what becomes before the Central Government in the form of taxes becomes the total fund and it is allocated. To ensure that this allocation is not arbitrary, we have a constitutional provision. The Finance Commission's focus is more on preparedness, mitigation and response. Disaster management as a subject has evolved over the years. The Commission had in its mind...

Supreme Court Reserves Judgment On Plea For Ex-Gratia Compensation To COVID Victims

Radhika Roy

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