The Centre has told the Supreme Court the cash-strapped Union and state governments cannot pay Rs 4 lakh in ex-gratia compensation to the families of dead Covid patients, as sought by petitioners who have cited the Disaster Management Act and a six-year-old government order.

“It may also be noted that the term ‘ex-gratia’ itself connotes that the amount is not based on legal entitlement,” an affidavit placed before the apex court by the Union home ministry says.

It asks the court not to “second guess” or “substitute its own judgement for the decision to be taken by the executive” on relief, saying the DM Act, 2005, leaves such matters to the “national authority”.

The affidavit adds that the government has provided the “minimum standard relief” mandated by the DM Act by improving the health infrastructure and ensuring food safety for every citizen.

It describes the idea that help can be provided only through ex-gratia assistance as “a rather pedantic and narrow approach”.

“The prayer of the petitioner for payment of ex-gratia to all deceased persons due to Covid-19 is beyond the fiscal affordability of the state governments,” the affidavit says.

“Already the finances of state governments and the central government are under severe strain due to the reduction in tax revenues and increase in health expenses on account of the pandemic.

“Thus, utilisation of scarce resources for giving ex-gratia may have unfortunate consequences of affecting the pandemic response and health expenditure in other aspects and hence cause more damage than good.”

Section 12 of the DM Act says it’s the “national authority” that is empowered to recommend guidelines for the minimum standards of relief, including ex-gratia assistance, the affidavit says.

“It is well settled through numerous judgments 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,” the Centre has argued.

The Centre said: “Any attempt to second guess may create unintended and unfortunate constitutional and administrative ramifications.”

In contrast to the “narrow approach” of ex-gratia assistance, the Centre has recommended “a broader approach, which involves health interventions, social protection and economic recovery for the affected communities” as “more prudent, responsible and sustainable”.

“Globally, the governments in other countries too have followed this approach, and have announced interventions that provide fiscal stimulus. Government of India has followed a similar approach,” the affidavit says.

The apex court is hearing two petitions, one seeking directions to the Centre and the states to provide Rs 4 lakh in compensation to the families of dead Covid patients and the other seeking a uniform policy on Covid death certificates.

Many have complained that the death certificates of Covid patients often mention other conditions as the cause of death, preventing their families from claiming compensation.

Advocate Gaurav Kumar Bansal, one of the petitioners, had argued that under Section 12(iii) of the DM Act, every family that loses a member to a disaster is entitled to an ex-gratia compensation of Rs 4 lakh. He said the Centre had notified this on April 8, 2015.

Since Covid has been declared a disaster, he said, families losing members to the virus are entitled to this compensation.

On May 24, the top court had sought the Centre’s reply on both petitions and asked it to furnish the Indian Council of Medical Research guidlines on the death certificates for Covid patients.
On June 11, the Centre had told the top court the issues raised in the petitions were “genuine” and the government was considering them.