# REEPAK KANSAL v. UNION OF INDIA AND OTHERS

- **Citation:** [2021] 6 S.C.R. 920
- **Court:** Supreme Court of India
- **Decided:** 2021-06-30
- **Bench:** Ashok Bhushan, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/reepak-kansal-v-union-of-india-and-others-34999
- **Pages:** 58

## Headnote

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, in view of s.12 of the Act
- Whether the word "shall" used in s.12 of the Act is to be interpreted
and considered as "shall" or "may" and whether it is "mandatory"
or "directory/discretionary" for the National Disaster Management
Authority to recommend guidelines for the minimum standards of
relief to be provided to persons affected by disasters including ex
gratia assistance on account of loss of life - Held: 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 s.12 significantly imposes a duty cast upon the National
Disaster Management 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 - Provisions of
s.12 has to be applied to Covid-19 pandemic which is declared as
"notified disaster"/national disaster - National Disaster
Management Authority failed to perform its statutory duty cast u/
s.12 and therefore a writ of mandamus is to be issued - National
Disaster Management Authority 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 u/
s.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
[2021] 6 S.C.R. 920
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assistance is left to the wisdom of National Disaster Management
Authority.
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
t

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SUPREME COURT REPORTS
[2021] 6 S.C.R.
920
REEPAK KANSAL
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Civil) No. 554 of 2021)
June 30, 2021
[ASHOK BHUSHAN AND M. R. SHAH, JJ.]
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, in view of s.12 of the Act
- Whether the word "shall" used in s.12 of the Act is to be interpreted
and considered as "shall" or "may" and whether it is "mandatory"
or "directory/discretionary" for the National Disaster Management
Authority to recommend guidelines for the minimum standards of
relief to be provided to persons affected by disasters including ex
gratia assistance on account of loss of life - Held: 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 s.12 significantly imposes a duty cast upon the National
Disaster Management 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 - Provisions of
s.12 has to be applied to Covid-19 pandemic which is declared as
"notified disaster"/national disaster - National Disaster
Management Authority failed to perform its statutory duty cast u/
s.12 and therefore a writ of mandamus is to be issued - National
Disaster Management Authority 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 u/
s.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
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assistance is left to the wisdom of National Disaster Management
Authority.
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
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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
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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
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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
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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]
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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
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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.
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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,
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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
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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]
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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
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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.
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 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.
Case Law Reference
[2010] 15 SCR 85
referred to
Para 13
[2005] 2 Suppl. SCR 699
referred to
Para 3.5
[2002] 4 Suppl. SCR 517
referred to
Para 3.5
(2016) 7 SCC 498
referred to
Para 3.6
[1981] 1 SCR 97
referred to
Para 3.6
[1981] 2 SCR 408
referred to
Para 3.6
(1990) 1 SCC 613
referred to
Para 5.1
(1997) 8 SCC 191
referred to
Para 5.1
(2008) 12 SCC 372
referred to
Para 6
2021 (4) SCALE 415
relied on
Para 7.2
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
554 Of 2021.
(Under Article 32 Of The Constitution Of India)
With
Writ Petiton (Civil) No.539 Of 2021.
S.B. Upadhyay, Sr. Adv., Reepak Kansal, Yadunandan Bansal,
Ms. Ruhi Gupta, Harisha S.R., Advs. for the petitioner.
Tushar Mehta, S.G., Ms. Aishwarya Bhati, K.M. Nataraj, ASGs.,
Rajat Nair, Amit Sharma, Sughosh Subramanian, B.V. Balaram Das,
Chirag M Shroff, Dr. Monika Gusain, D. Kumanan, Rahul Joshi, Sumeer
Sodhi, Varun Tankha, Hussain Ali, Siddhant Gupta, Anand S. Jondhale,
REEPAK KANSAL v. UNION OF INDIA AND OTHERS
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Yashoda Jondhale, Abdul Qadir, Sunil Prem Lalla, Satish Pandey, Advs.
for the Respondents.
Petitioner-in-person.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. The applications for interventions are allowed in terms of the
prayer made and the applicants are permitted to intervene in the present
proceedings.
2. These two writ petitions have been filed in Public Interest
seeking directions to the respondents - Central/State Governments to
provide ex gratia monetary compensation of Rs. 4 lacs or notified 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 (hereinafter referred to as 'DMA
2005'). It is also further prayed for an appropriate direction to the
respondents - State Governments to fulfil their obligation to take care of
victims of the calamity and their family members. One another relief
which is sought in Writ Petition (Civil) No. 554 of 2021 is to issue an
appropriate direction to the 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. One additional relief which is
sought in Writ Petition (Civil) No. 539 of 2021 is to issue an appropriate
writ of mandamus against the respondents - Union of India and others
to provide social security and rehabilitation to the victims of Covid-19.
Two applications have been filed in the aforesaid writ petitions by
intervenors - family members who have lost their family members due
to Covid-19, supporting the prayers sought in the respective writ petitions.
3. Shri S.B. Upadhyay, learned Senior Advocate has appeared on
behalf of the petitioner in Writ Petition (Civil) No. 554 of 2021. Shri
Gaurav Kumar Bansal, learned Advocate has appeared as Party in
Person in Writ Petition (Civil) No. 539 of 2021. Shri Sumeer Sodhi and
Shri Anand S. Jondhale, learned Advocates have appeared on behalf of
the intervenors in the respective intervention applications. Shri Tushar
Mehta, learned Solicitor General along with Shri K.M. Natraj and Ms.
Aishwarya Bhati, learned Additional Solicitor Generals have appeared
on behalf of the Union of India.
3.1 Shri S.B. Upadhyay, learned Senior Advocate appearing on
behalf of the petitioner in Writ Petition (Civil) No. 554 of 2021 has
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submitted that admittedly Covid-19 is a "Notified Disaster" and therefore
the provisions of the DMA 2005 shall apply. It is submitted that as such
vide letter dated 14.03.2020, Ministry of Home Affairs, Union of India
has stated that the Central Government, keeping in view the spread of
Covid-19 virus in India, has decided to treat it as "Notified Disaster" for
the purpose of providing assistance under State Disaster Response Fund
(SDRF). It is submitted that earlier as per the letter/communication dated
8.4.2015, the Government of India, Ministry of Home Affairs (Disaster
Management Division) issued revised list and norms of assistance from
SDRF and National Disaster Response Fund (NDRF). It is submitted
that as per the said letter, for any death which is caused due to disaster,
an amount of Rs. 4 lacs is to be paid to the victim's family, in addition to
other reliefs. It is submitted therefore on the same line and applying the
same criteria, the family members of those who have succumbed to
Covid-19 are to be provided ex gratia monetary compensation of Rs. 4
lacs, as Covid-19 is also treated, considered and declared as "Notified
Disaster".
3.2 It is further submitted by Shri Upadhyay, learned Senior
Advocate appearing on behalf of the petitioner that Section 12 of the
DMA 2005 mandatorily provides for the National Authority defined under
Section 3 of the said Act to recommend guidelines for the minimum
standards of relief to be provided to persons affected by the disaster and
it shall include, inter alia, ex gratia assistance on account of loss of life.
It is submitted therefore that it is the statutory duty of the National
Authority to provide in the guidelines for ex gratia assistance on account
of loss of life who died due to Covid-19, which is declared as a "Notified
Disaster".
3.3 It is submitted that to provide such ex gratia assistance on
account of loss of life is not only a statutory obligation under Section 12
of the DMA 2005, but it is the constitutional obligation also since it also
affects the right to life guaranteed under Article 21 of the Constitution of
India. It is submitted that the word "shall" occurring twice in Section 12
of the Act puts a constitutional and statutory obligation on the part of the
Central/State Government to recommend guidelines for providing ex
gratia assistance which is in the nature of sustenance assistance. It is
submitted that as such keeping the aforesaid in mind, earlier for the
years 2015-2020 vide Ministry of Home Affairs letter dated 08.04.2015
the Government has fixed norms of assistance from SDRF and NDRF
for providing succour to the aggrieved family.
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[M. R. SHAH, J.]
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3.4 It is further submitted that the word "shall" occurred in Section
12 of the DMA 2005 should be construed as "mandatory" and shall not
be read as "may", as contended on behalf of the Union of India. It is
submitted that if the word "shall" used in Section 12 of the DMA 2005 is
read as "may", as sought to be canvassed on behalf of the Union of
India, the concept of "situation interpretation" evolved would negate the
very object and purpose enshrined in Section 12 of the DMA 2005 since
the purpose is immediate sustenance assistance to the aggrieved family.
Heavy reliance is placed on the decision of this Court in the case of
DLF Universal Limited v. Director, Town and Country Planning
Department, Haryana (2010) 14 SCC 1 (para 13) and Shin-Etsu
Chemical Co. Ltd. v. Aksh Optifibre Limited, (2005) 7 SCC 234 (para
85).
3.5 Relying upon the decision of this Court in the case of
Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC
111 (paras 25 & 26), it is submitted that when the language used in the
section/provision is plain and unambiguous, no words shall be added,
altered or modified unless it is plainly necessary to do so to prevent a
provision from being unintelligible, absurd, unreasonable, unworkable or
totally irreconcilable with the rest of the statute. It is submitted that in
the present case the language used in Section 12 of the DMA 2005 is
plain and unambiguous and therefore the word "shall" shall be read as
"shall" and the same should be construed as mandatorily to be provided.
3.6 Relying upon the decision of this Court in the case of Swaraj
Abhiyan v. Union of India, (2016) 7 SCC 498 (paras 120 to 123), it
is submitted that as held by this Court, a plea of financial inability cannot
be an excuse for disregarding statutory duties. Reliance is also placed
on the decisions of this Court in the cases of Municipal Council, Ratlam
v. Vardichan, (1980) 4 SCC 162; and Khatri (2) v. State of Bihar,
(1981) 1 SCC 627 and it is submitted that as observed the State may
have its financial constraint and its priorities in expenditure, the law does
not permit any government to deprive its citizens of constitutional rights
on a plea of poverty.