Covid Ex Gratia
By Dr S. Saraswathi
(Former Director, ICSSR, New Delhi)
The Supreme Court directed the National Disaster Management Authority (NDMA) to quantify within six weeks the ex gratia amount to be paid to the families of nearly four lakh Covid-19 victims. It said that the NDMA failed to discharge its duty though the disease had been declared a disaster under the Disaster Management Act a year ago. The court was hearing a petition from two advocates pleading for ex gratia payment of Rs. four lakh to the family of each victim.
The court left the decision on the amount to the NDMA rejecting the suggestion of petitioners to fix it as Rs.4 lakh, but ruled that this should be paid from the National Disaster Relief Fund (NDRF) and State Disaster Relief Fund (SDRF) and should be over and above the ex gratia paid by the State from other sources.
The judgement is based on Section 12 (iii) of the Disaster Management Act 2005 under which the government has to frame guidelines for minimum standards of relief to be provided to persons affected by disaster which “shall” include relief camps to provide food, water, shelter, sanitation, and medical cover, special provisions for widows and orphans, ex gratia assistance on account of loss of life, assistance in case of damage to house and restoration of means of livelihood, and other such relief measures.
Failure to fix the ex gratia amount to be paid in the case of Covid-19 death was pointed out by the SC as a failure of the government to carry out a statutory duty. The court, however, admitted the financial strain on the government in fighting the pandemic, but held that there is no escape from Section 12 of the Disaster Act. The pleading of the government that the provision is not mandatory, but optional, that the word “shall” must be “may” was not accepted by the court.
A crucial part of the judgement is the criticism of the stand taken by the government to use funds from NDRF and SDRF for purposes like strengthening infrastructure, public health interventions like testing, hospital facilities, oxygen supply, and vaccination, food and shelter for migrant workers, economic recovery for the affected communities, etc., leaving out ex gratia payment in the case of loss of life. Utilisation of scarce resources to pay ex gratia may, as the government argued, adversely affect essential expenditure in containing the pandemic.
The judgement seems to give more importance to ex gratia for loss of life than constructing necessary infrastructure and taking preventive and curative measures to fight the epidemic to save the unaffected population. Fortunately, it has left the NDMA under the Union Government to fix the amount according to financial capacity as prescribed in the law. Government resources are not unlimited.
The government has informed the court that the NDMA and the Asian Development Bank were already considering a proposal on insurance-backed ex gratia for Covid victims.
The Act of 2005 was made in the context of tsunami that hit the country in 2004 and regular cyclones, flood, earthquakes and such natural disasters. A pandemic as disastrous as Covid-19 was not in anybody’s mind. Natural disasters, however big, have localised impact and do not stretch too long and affect the entire population of a nation in multiple ways like the Covid-19 pandemic.
Disaster under this Act means a catastrophe, mishap, calamity, or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which result in substantial loss of life or human suffering or damage to and destruction of property or damage to or degradation of environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.
Covid-19 cannot be attributed to any of the factors mentioned in the Act, but is a “disaster” in the ordinary sense of a sudden and grave calamity causing huge loss of lives and livelihood beyond the capacity of the affected people to face and overcome. It may also remain permanent assuming different forms and affecting life on earth more and more.
Ex gratia assistance is by dictionary definition, an act of grace not under (especially) legal compulsion. It is a favour and not duty. Section 12 of the Act speaks of relief measures and not compensation as demanded by some political parties. Some of Congress leaders, who had been demanding creation of a Covid Compensation Fund to compensate the families that have lost the breadwinner, and grant of Rs.10 lakh to every Covid-19 victim by the Central Government, welcome the judgement but without distinguishing between ex gratia, compensation, and relief measures.
Government of India has undertaken many relief measures for treatment and care of the patients and supply of medicines. Financial loss caused by closure of several industrial and economic activities has necessitated many relief packages, rehabilitation measures, and monetary aids that will cut into our planned activities. Orphaned children and migrant labour are to be protected. “One Nation, One Ration Card” is being introduced to ensure food security to migrants via national portability of ration cards.
But, the calamity is too big touching every aspect of life and too sudden that no country is prepared to face it with fool-proof programmes. Since there is no prior knowledge about this pandemic, it is unfair to blame any authority for delay and lapses in containing the disease, treatment of patients, and rebuilding the losses simultaneously. On the contrary, cooperation of all and coordination of efforts are the need of the hour. But, we are well versed in playing politics under any crisis.
Ex gratia payment in the case of Covid victims raises the question of the responsibility of the public in fighting the pandemic. It is impossible to find out how many of the victims wantonly violated prescribed behavioral norms and contracted the disease and how many contributed to its spread. In our country, anti-vaccine propaganda, political and social gatherings, and organised protests are going on in flagrant violation of Covid norms. Are not the organisers responsible for spreading the disease and bound to contribute funds for compensation to victims?
Welfare schemes and humanitarian ideas are quite strong in the country that there is no need for political pressure and legal compulsion to step in to constantly pressurise the government to divert attention from their main task.
Ex gratia payment for loss of life is not an unmixed welfare scheme. It may also encourage negligence in the care of the sick, particularly the elderly and small kids. When fake vaccine, fake doctors, false death records, wastage and black-marketing of vaccines and medicines are rampant, fixed ex gratia may fail in its purpose. Causes of death may suddenly change. Deaths reported as due to Covid-19 will increase. Government will have to act on case by case basis or categorise cases of Corona deaths by fixed criteria.
Our concentration should be on positive action — preventive, curative, and relief — and not demands, litigations, court orders, and clamour for relief and compensation. — INFA