"Where is NDMA decision:" Supreme Court reserves judgment in plea seeking ex-gratia payment of Rs 4 lakh for COVID deaths

The Supreme Court on Monday reserved its judgment on a plea seeking directions to the Central and State governments to provide ex-gratia compensation of Rs. 4 lakh to the family members of those who have succumbed to the COVID-19 disease and post COVID complications including mucormycosis..A vacation bench of Justices Ashok Bhushan and MR Shah while reserving judgment sought to know from the Central government on whether the National Disaster Management Authority (NDMA) had considered the prayer for payment of such ex-gratia payments and rejected the same. .The petition by advocates Gaurav Kumar Bansal and Reepak Kansal had referred to Section 12 of the Disaster Management Act 2005, which said that national authority shall recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster, which shall include ex-gratia assistance..Ministry of Home Affairs (MHA) had informed Supreme Court that giving an ex gratia payment of Rs. 4 lakh to kin of each COVID-19 deceased would not be possible as "resources of the government have limits" and entire amount of State Disaster Relief Fund will end up being utilised for such payments, if such payments are made..Regarding Section 12 of DMA, the reply affidait by Centre had said that it is the “National Authority” which is empowered to recommend guidelines for the minimum standards of relief, including ex-gratia assistance and thus it is a "function entrusted to the authority by the law passed by the Parliament.""It is well settled through numerous judgements of the Supreme Court that this is a matter which should be performed by the authority, to whom it has been entrusted and not one where the Court will substitute its own judgement for the decision to be taken by the Executive. Any attempt to second guess may create unintended and unfortunate Constitutional and administrative ramifications," the affidavit said. .Senior Advocate SB Upadhyay arguing for the petitioners on Monday, stated that financial constraints cannot be used to evade constitutional obligations. ."All schemes by the government is respected. The question that arise is if statute provides consideration, can financial constraint be a ground to not meet constitutional obligations? In Swaraj Abhiyan case it was held financial constraint will not come in way of meeting constitutional obligations. The ex gratia scheme has to be extended for 2021 too. The Disaster Management Act itself says so. They say in section 12, the word shall will be read as 'May'," Upadhyay argued. .Upadhyay further argued that the scheme for doctors should be extended to those working at the crematoriums too since they are the forefront of COVID-19 battle. ."Resources of govt have limits:" MHA tells Supreme Court ex-gratia payment of Rs. 4 lakh for COVID-19 deaths beyond "affordability" of States.Solicitor General Tushar Mehta representing the Central government, placed reliance on Finance Commission's 5 year plan report to contend that insurance scheme would be the best way to handle a pandemic which occurs every 10 or 100 years.However, the SG conceded that "Finance Commission recommendations cannot override a statutory obligation and thus Section 12 cannot be nullified. Finance commission says how mitigation needs to be done and thus amounts are earmarked. If the plea succeeds then allocation has to change.".Justice Shah sought to know whether the Finance commission recommendation for 5 years and guidelines under Section 12 are different. "It may guide you to determine amount of compensation but where is the decision by the NDMA (under Section 12)," the Bench asked. .Advocate Sumeer Sodhi appearing for certain intervenors submitted that there should be uniform policy by States since Bihar was giving Rs 4 lakh compensation while some other state was offering only Rs. 1 lakh..However, SG Mehta clarified that it was not the case of the government that it has no funds, but the question is on how to utilise the funds. "It is not the case of government that we don't have money. Our focus on expenditure of the money is on a holistic solution. We are focussing on aspects like food security, etc," said SG. .On the issue of death certificates, the Court asked whether there can be some measures so to as to simplify the process of obtaining the certificates and also to ensure that the ones who have been issued such certificates where COVID was not mentioned, can avail a correction. ."Prima facie we find that it is more complicated for such certificates. Can't this process be simplified. Those persons who have already been issued death certificate but Covid was not mentioned then what remedy is for them? Can't you issue such certificate on production of covid positive certificate," Justice Shah asked. .All deaths with COVID-19 diagnosis, irrespective of co-morbidities, are to be classified as deaths due to COVID-19: Central govt to Supreme Court.The government said that it will look into the issue of death certificates. .[Read live hearing details]