Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. Considering the Statement of Objects and Reasons for enactment of DMA 2005 and the relevant provisions of the DMA 2005, referred to hereinabove, it is to be considered whether the word “shall” used in Section 12 is required to be interpreted and considered as “shall” or “may” and whether it is “mandatory” or “directory/discretionary” for the National 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. 10.1 In Section 12 of DMA 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 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. (See Bhavnagar University (supra) (para 26). 10.2 Under Section 12 of DMA 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. 10.3 As observed by this Court in the case of Bachahan Devi (supra), 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. In paragraph 18, it is observed and held as under: “18. It is well settled that the use of the word “may” in a statutory provision would not by itself show that the provision is directory in nature. In some cases, the legislature may use the word “may” as a matter of pure conventional courtesy and yet intend a mandatory force. In order, therefore, 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. It is equally well settled that where the word “may” involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word “may” should be interpreted to convey a mandatory force. As a general rule, the word “may” is permissive and operative to confer discretion and especially so, where it is used in juxtaposition to the word “shall”, which ordinarily is imperative as it imposes a duty. Cases, however, are not wanting where the words “may”, “shall” and “must” are used interchangeably. In order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the legislature should be looked into along with the pertinent circumstances.” 10.4 Therefore, 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 REEPAK KANSAL v. UNION OF INDIA AND OTHERS [M. R. SHAH, J.] 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 long- time effect/impact. The aforesaid cannot be accepted for the simple reason that every disaster as defined under Section 2(d) of the 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. As observed hereinabove, 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.
11. Now the next question which is posed for the consideration of this Court is, what further relief the petitioners are entitled to. 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? 11.1 The scope of judicial review is discussed hereinabove. It cannot also 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. Other natural disasters would have a different effect/impact. Covid-19 pandemic is having an on-going impact/effect. The pandemic is still not over in the country as also the world and it is extremely difficult to predict with accuracy, it’s further trajectory, mutations and waves. Looking to its peculiarity and the impact and effect, the Covid-19 pandemic is required to be viewed differently from other disasters. There is a need to focus simultaneously on prevention, preparedness, mitigation and recovery, which calls for a different order of mobilization of both financial and technical resources. The Government is required to and as so stated in the counter affidavit and as submitted by Shri Mehta, learned Solicitor General, a huge fund is required for the purpose of creating the infrastructure, hospitals, ventilators, oxygen, testing, vaccination etc. According to the Central Government, the Government has bonafidely and in the larger public interest has decided the priorities and focused simultaneously on prevention, preparedness, mitigation and recovery. REEPAK KANSAL v. UNION OF INDIA AND OTHERS [M. R. SHAH, J.] According to the official figure, the pandemic has caused more than 3,85,000 deaths, the same is likely to increase further. It cannot be disputed that these deaths have affected the families from all classes – the rich and poor, professionals and informal workers, and traders and farmers. It has also affected the kins as well as elderly members, old parents. Many have lost the sole bread earner. However, at the same time, and as observed hereinabove, the impact and effect of the present pandemic/ disaster would be different from the other disasters/natural disasters for which ex gratia assistance is provided. 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.
12. As observed hereinabove, the Government has to decide its own priorities and reliefs to the different sectors/for different reliefs. The Government is required to take various measures in different fields/ sectors, like public health, employment, providing food and shelter to the common people/migrants, transportation to migrants etc. The Government is also required to deal with the effect of the pandemic on the economy. As observed hereinabove, a huge amount is required to be spent from the NDRF/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. As observed by this Court in the case of Nandlal Jaiswal (supra), the Government, as laid down in Permian Basin Area Rate Cases, 20 L Ed (2d) 312, is entitled to make pragmatic adjustments which may be called for by particular circumstances. As observed by this Court hereinabove, 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, as observed hereinabove, while recommending guidelines for the minimum standards of relief to be provided to persons affected by disaster/Covid-19 pandemic, the authority has to consider issuing/ recommend guidelines on ex gratia assistance on account of loss of life. As observed hereinabove, 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. 12.1 At this stage, it is required to be noted and 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, for the reasons stated REEPAK KANSAL v. UNION OF INDIA AND OTHERS [M. R. SHAH, J.] hereinabove, 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.
13. Now so far as the prayer to issue appropriate direction to the respondents – State Governments to issue an official document stating Covid-19 related as cause of death, to the family members of the deceased who died due to Covid-19 is concerned, it is required to be noted that 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 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. We have gone through the counter affidavit filed on behalf of the Union Government on the aforesaid and the guidelines issued by the ICMR as well as the format and the guidelines issued to the Registering Authorities of the concerned State Governments. However, we feel that the procedure should be as simplified as it can be. Therefore, 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.
14. Now 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.
15. Now so far as one additional relief sought in Writ Petition (Civil) No. 539 of 2021 to issue appropriate direction directing 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 actively considering the same in consultation with other stakeholders. We hope and trust that the Union Government will consider the recommendations made by the Finance Commission made in its XVth Finance Commission Report and take an appropriate decision in consultation with other stakeholders and the experts. 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)/ REEPAK KANSAL v. UNION OF INDIA AND OTHERS [M. R. SHAH, J.] 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 premortem. 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, Shri Tushar Mehta, learned Solicitor General has also stated at the Bar that the Union Government/appropriate authority shall look into the same.
16. In view of the above and for the reasons stated above, we dispose of the present writ petitions with the following directions: 1) We direct the National Disaster Management Authority 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 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 the observations made hereinabove, 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 from today; 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 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; and 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.
17. As a sequel to the above, all pending interlocutory applications also stand disposed of. Devika Gujral Writ Petitions disposed of. REEPAK KANSAL v. UNION OF INDIA AND OTHERS [M. R. SHAH, J.]