GAURAV KUMAR BANSAL vs. UNION OF INDIA

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION MISCELLANEOUS APPLICATION NO. 1120 OF 2021 IN WRIT PETITION (CIVIL) NO. 539 OF 2021 Gaurav Kumar Bansal …Writ Petitioner Versus Union of India and others …Applicants/ Respondents Order on compliance of the judgment and order dated 30.06.2021 Passed in Writ Petition (Civil) No. 539 of 2021 M.R. SHAH, J. 1. Pursuant to a detailed judgment and order dated 30.06.2021, this Court directed the National Disaster Management Authority (NDMA) and the appropriate authority in paragraph 16 as under: “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 Signature Not Verified Digitally signed by R Natarajan Date: 2021.10.04 16:31:50 IST Reason: 2 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 this XVth Finance Commission Report bearing paragraph 8.131 in consultation with other stakeholders and experts.” 2. Under the above directions in terms of para 16(1), the NDMA was required 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 mandatory under Section 12 (iii) of the Disaster Management Act, 2005 (for short, ‘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, within a period of six weeks from 30.06.2021. This Court also specifically observed that what reasonable 3 amount to be offered towards ex-gratia assistance is left to the wisdom of the NDMA which may consider determining the amount taking into consideration the observations made in the detailed judgment and order dated 30.06.2021, 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. 3. By order dated 16.08.2021, this Court extended the time for framing the guidelines as per the directions contained in paragraph 16(1) of the judgment dated 30.06.2021, by a further period of four weeks. 4. An affidavit/additional affidavit has been filed on behalf of the Union of India with respect to compliance of the directions contained in paragraph 16(1) of the judgment dated 30.06.2021 and it is stated that now the NDMA has prepared guidelines for ex-gratia assistance to the next of the kin of the deceased due to Covid-19 under Section 12(iii) of the DMA 2005, vide guidelines dated 11.09.2021 under which the NDMA has recommended an amount of Rs.50,000/- as ex-gratia payment to the next of the kin of the deceased due to Covid-19. It is stated that the ex-gratia assistance shall be provided by the States from the State Disaster Response Fund (SDRF) and the ex-gratia assistance to the next of the kin of the deceased person shall be disbursed by the District Disaster Management Authority/District 4 Administration and the disbursement shall be as per clause 8 of the said guidelines. The relevant clauses of the guidelines read as under: “5. In view of the points mentioned in para 2, the Authority recommends an ex-gratia payment to next of kin of the deceased due to COVID-19, subject to cause of death being certified as COVID-19 as per the guidelines issued by MoHFW and ICMR. 6. Amount of ex-gratia payment: The Authority recommends an amount of Rs.50,000/- (Fifty Thousand only) per deceased person including those involved in relief operations or associated in preparedness activities, subject to cause of death being certified as COVID-19. With regards to such certification, and redressal of any grievances regarding the same, guidelines issued by MoHFW and rd ICMR on 3 September, 2021 and referred to in para 2 above, will be applicable. 7. Source of funds: The ex-gratia assistance shall be provided by States from the State Disaster Response Fund (SDRF). 8. Disbursement : The District Disaster Management Authority (DDMA)/ district administration would disburse the ex-gratia assistance to the next of kin of the deceased persons. The concerned families will submit their claims through a form issued by State Authority along with specified documents including the death certificate that certifies the cause of death to be COVID-19. The DDMA will ensure that the process of claim, verification, sanction, and the final disbursement of ex-gratia payment will be through a robust yet simple and people-friendly procedure. All claims must be settled within 30 days of submission of required documents and disbursed through Aadhaar linked Direct Benefit Transfer procedures. 9. Grievance redressal: In case of any grievances with regards to certification of the death, as prescribed in the MoHFW and ICMR guidelines mentioned above a Committee at district level consisting of Additional District Collector, Chief Medical Officer of Health (CMOH), Additional CMOH/Principal or HOD Medicine of a Medical College ( if one existing in the district) and a subject expert, will propose necessary remedial measures, including issuance of amended Official Document for COVID-19 death after verifying facts in accordance with these guidelines. In case the decision of the Committee is not in favour of the claimant, a clear reason for the same shall be recorded. 10. Continuous Scheme: The Ex-gratia assistance to families affected by COVID-19 deaths will continue to be provided for deaths that may occur in the future phases of the COVID-19 pandemic as well, or until further notification. 5 5. Now so far as the directions contained in para 16(2) of the judgment dated 30.06.2021 are concerned, first affidavit has been filed on 08.09.2021 in which it is stated that in compliance of the directions issued by this Court contained in paragraph 16(2), the Ministry of Health & Family Welfare, Government of India and the Indian Council of Medical Research have jointly issued guidelines dated 3.9.2021 for issuance of an official document for Covid-19 related deaths. It is further stated that office of the Registrar General of India has also issued a circular dated 3.9.2021 to provide a medical certificate of cause of death to the next of the kin of the deceased. Under the guidelines dated 3.9.2021, it is provided as under: “Government of India Ministry of Health & Family Welfare & Indian Council of Medical Research Guidelines for Official Document for COVID19 Death (lssued in compliance to the Hon'ble Supreme Court order dated 30.06.2021 in WP(Civil) No. 539 and WP (Civil) 554 of 2021) . 1.Background Since the beginning of the Covid-19 pandemic, Indian Council of Medical Research (ICMR) and Ministry of Health & Family Welfare have been issuing specific guidelines to States/UTs based on World Health Organization's (WHO) guidelines & global best practices on reporting Covid deaths. Relevant officers in States/UTs have also been trained on correct recording of deaths related to Covid-19. Hon'ble Supreme Court in Writ Petition (Civil) No. 539 and 554 of 2021 directed the Central Government to issue simplified guidelines for issuance of Official Document relating to COVID-19 deaths to the family members of the deceased, who died due to COVID-19. Hon'ble Court had directed that such guidelines may also provide the remedy to the family members of the deceased who died due to COVID-19 for correction of the Medical Certificate of Cause of Death/Official Document issued by the 6 appropriate authority. 2. Guiding Principles i. COVID-19 cases, for the purpose of these Guidelines, are those which are diagnosed through a positive RT-PCR/ Molecular Tests/ RAT OR clinically determined through investigations in a hospital/ in-patient facility by a treating physician, while admitted in the hospital/ in-patient facility. ii. Deaths occurring due to poisoning, suicide, homicide, deaths due to accident etc. will not be considered as COvID-19 deaths even if COVID19 is an accompanying condition. 3. Scenario based approach and interventions i. COVID-19 cases which are not resolved and have died either in hospital settings or at home, and where a Medical Certificate of Cause of Death (MCCD) in Form 4 & 4 A has been issued to the registering authority as required under Section 10 of the Registration of Birth and Death (RBD) Act, 1969, will be treated as a COVID-19 death. Registrar General of India (RGI) will issue necessary guidelines to Chief Registrars of all States/UTs. ii. As per the study by Indian Council of Medical Research (ICMR), 95% i. deaths take place within 25 days of being tested Covid positive. To make the scope broader and more inclusive, deaths occurring within 30 days from the date of testing or from the date of being clinically determined as a COVID-19 case, will be treated as 'deaths due to COVID-19, even if the death takes place outside the hospital/ in-patient facility. iii. However, a COVID-19 case, while admitted in the hospital in-patient ii. facility, and who continued as the same admission beyond 30 days, and died subsequently, shall be treated as a COVID-19 death. iv. In cases where the MCCD is not available or the next of kin of the deceased is not satisfied with the cause of death given in MCCD (Form 4/4A), and which are not covered by the aforesaid scenarios, the States/ UTs shall notify a Committee at district level consisting of Additional District Collector, Chief Medical Officer of Health (CMOH), Additional CMOH/ Principal or HOD Medicine of a Medical College (if one exists in the district) and a subject expert, for issuance of the Official Document for COVID-19 Death. The Committee will follow the 7 procedure outlined below: a. The next of kin of the deceased shall submit a petition to the District Collector for issuance of the appropriate Official Document for COVID- 19 Death. b. The Official Document for COVID-19 Death will be issued in the format annexed to these Guidelines by the aforesaid district-level Committee after due examination and verification of all facts. c. The Official Document for COvID-19 Death shall also be communicated to Chief Registrars of States/UTs and Registrar of Birth and Death, who issued the death certificate. d. The Committee shall also examine the grievances of the next of kin of the deceased, and propose necessary remedial measures, including issuance of amended Official Document for COVID-19 Death after verifying facts in accordance with these guidelines. e. e. The applications for issuance of Official Document for COVID-19 Death and for redressal of grievances shall be disposed off within 30 days of submission of the application/ grievance.” 6. It provided that the deaths occurring due to poisoning, suicide, homicide, deaths due to accident etc. will not be considered as Covid-19 deaths even if Covid-19 is an accompanying condition. 7. On the last date of hearing, a concern was shown on some of the clauses in the guidelines dated 3.9.2021 including the deaths occurring due to poisoning, suicide, homicide, deaths due to accident etc. will not be considered as Covid-19 deaths even if Covid-19 is an accompanying condition. 7.1 A concern was also shown with respect to Grievance Redressal Mechanism in case of any grievance with regard to certification of the death. To that, under the guidelines dated 11.09.2021 in clause 9, a provision is 8 made with respect to constitution of a Grievance Redressal Committee at District level consisting of the members mentioned in clause 9 of the guidelines dated 11.09.2021, which is reproduced hereinabove. 8. A further additional affidavit dated 22.09.2021 has been filed on behalf of the Union of India on some of the issues/concerns expressed by this Court during the course of hearing on 13.09.2021 and in response thereto, it is submitted as under:

9

10

11

12

13

14

15

9. Having heard Shri Tushar Mehta, learned Solicitor General of India and the writ petitioner Mr. Gaurav Kumar Bansal and Mr. Sumeer Sodhi, learned Advocate for the intervenor and considering the Guidelines dated 11.09.2021 issued by the National Disaster Management Authority issued under Section 12 (iii) of DMA, 2005 on amount of ex-gratia assistance to the next of the kin of the deceased due to Covid-19 and the affidavit/additional affidavit filed on behalf of the Union of India, it appears that the NDMA has recommended an amount of Rs.50,000/- as ex-gratia payment to the next of the kin of the deceased due to Covid-19. The Guidelines also provide that ex-gratia assistance shall be provided by the States from the State Disaster Response Fund (SDRF) and the ex-gratia assistance to the next of the kin of the deceased person shall be disbursed by the District Disaster Management 16 Authority/District Administration. 10. In furtherance of our earlier order dated 30.06.2021, it is directed as under: i) that the next of the kin of the deceased died due to Covid-19 shall be paid ex-gratia assistance of an amount of Rs.50,000/-, which shall be treated as ex-gratia payment under Section 12(iii) of the DMA, 2005 and which shall be minimum and which shall be over and above the compensation/amount to be paid by the Union of India/State Governments/Union Territories to be declared/provided under different benevolent schemes; ii) that the ex-gratia assistance of Rs. 50,000/- shall be provided by the concerned States from the State Disaster Response Fund (SDRF); iii) that the ex-gratia assistance to the next of the kin of the deceased shall be disbursed by the District Disaster Management Authority/District Administration; iv) that the full particulars and address of the District Disaster Management Authority/District Administration who is required to disburse the ex-gratia assistance of Rs. 50,000/- shall be published in the Print Media and Electronic Media and wide publicity shall be given; that the same shall be published within a period of one week from today; it is further directed that such information shall also be published in the prominent offices of the village/taluk/district, such as, Gram Panchayat Office, Taluk Panchayat Office, District Collector Office, Corporation Office etc.; 17 v) that such ex-gratia assistance of Rs. 50,000/- shall be disbursed within a period of 30 days from the date of submitting the application to the concerned District Disaster Management Authority/District Administration along with the proof of the death of the deceased due to Covid-19 and the cause of death being certified as “Died due to Covid-19”; vi) that the amount to be disbursed as per the Guidelines dated 11.09.2021 and as observed hereinabove on the death being certified as Covid-19 death for which the cause of death mentioned in the death certificate shall not be the conclusive and if other documents are provided as discussed hereinbelow, the next kin of the deceased died due to Covid-19 shall be entitled to the ex-gratia assistance of Rs. 50,000/-; vii) that no States shall deny the ex-gratia assistance of Rs.50,000/- to the next of the kin of the deceased died due to Covid-19 solely on the ground that in the death certificate issued by the appropriate authority, the cause of death is not mentioned as “Died due to Covid-19”; viii) that in case of any grievance with regard to certification of the death, the aggrieved person may approach the Committee at District level consisting of Additional District Collector, Chief Medical Officer of Health (CMOH), Additional CMOH/Principal or HOD Medicine of a Medical College (if one existing in the district) and a subject expert, who shall take remedial measures including issuance of amended official document for Covid-19 death after verifying the facts on production of the necessary documents showing that the 18 death is due to Covid-19; ix) that the Authority/Committee shall carry out the directions as mentioned hereinbelow while considering the case of the deceased as Covid-19. All the States shall constitute such Committee within a period of one week from today and the address location and full particulars of the said Committee at the District level shall be published in Print Media and Electronic Media having wide circulation; so far as the Corporation area is concerned, a similar Committee be constituted consisting the Deputy Commissioner, Medical/Health, the Chief Medical Officer of Health of the Civil Hospital in the area, if any, Additional CMOH/Principal/HOD Medicine of a Medical College (if one existing in the district) and a subject expert and their office shall be at the office of the Municipal Corporation of the concerned municipality; x) it is further directed that in case the decision of the Committee is not in favour of the claimant, a clear reason for the same shall be recorded by the Committee which is called a Grievance Redressal Committee; xi) as agreed, and as per the Guidelines, the ex-gratia assistance to the families affected by Covid-19 deaths shall continue to be provided for deaths that may occur in future phases of Covid-19 as well. 11. Now so far as the directions contained in para 16(2) of our earlier order dated 30.06.2021 for issuance of the death certificates/official document stating the exact cause of death, i.e., “died due to Covid-19” to the family 19 members of the deceased who died due to Covid-19 is concerned, considering the additional affidavit filed on behalf of the Union of India dated 8.9.2021 and the subsequent clarification in the additional affidavit dated 22.09.2021 and the guidelines dated 3.9.2021, in furtherance of our earlier order dated 30.06.2021, it is further directed as under: i) Covid-19 cases, for the purpose of considering the deaths of the deceased due to Covid-19, are those which are diagnosed through a positive RT-PCR/Molecular Tests/RAT or clinically determined through investigations in a hospital/in-patient facility by a treating physician, while admitted in the hospital/in-patient facility; ii) that the deaths occurring within 30 days from the date of testing or from the date of being clinically determined as a Covid-19 case shall be treated as “Deaths due to Covid-19”, even if the death takes place outside the hospital/in-patient facility; iii) also, the Covid-19 case while admitted in the hospital/in-patient facility and who continued to be admitted beyond 30 days and died subsequently shall also be treated as a Covid-19 death; iv) Covid-19 cases which are not resolved and have died either in the hospital settings or at home, and where a Medical Certificate of Cause of Death (MCCD) in Form 4 & 4A has been issued to the registering authority, as required under Section 10 of the Registration of Birth & Death (RBD) Act, 1969, shall also be treated as Covid-19 death. However, it is observed and 20 made clear that irrespective of the cause of death mentioned in the death certificate, if a family member satisfies the eligibility criteria mentioned in paragraphs 11(i) to 11(iv) as above shall also be entitled to the ex-gratia payment of Rs. 50,000/- on production of requisite documents as observed hereinabove, and no State shall deny the ex-gratia payment of Rs. 50,000/- on the ground that in the death certificate the cause of death is not mentioned as “Died due to Covid-19”; v) all concerned hospitals where the patient was admitted and given treatment shall provide all the necessary documents of treatment etc. to the family member of the deceased, as and when demanded, and if any hospital and/or the place where the deceased had taken treatment refuses to furnish such documents, it will be open for the Grievance Redressal Committee to call for such information and the concerned hospital/institution where the deceased was admitted shall have to furnish such particulars as required for the purpose of establishing that the death was due to Covid-19; vi) a family member of the deceased who committed suicide within 30 days from being diagnosed as Covid-19 positive shall also be entitled to avail the financial help/ex-gratia assistance of Rs. 50,000/- as granted under the SDRF in accordance with the guidelines dated 11.09.2021 issued by the NDMA under Section 12(iii) of DMA, 2005, as directed hereinabove; vii) if any family member/kin of the deceased died due to Covid0-19 has any grievance with respect to non-receipt of the ex-gratia payment of Rs. 50,000/-, 21 it will be open for the aggrieved claimant to approach the Grievance Redressal Committee constituted as observed hereinabove, and the Grievance Redressal Committee shall examine the contemporaneous medical record of the deceased patient, and take a decision within a period of 30 days from approaching the said Grievance Redressal Committee and as observed hereinabove such Grievance Redressal Committee shall have powers to call for the details/documents from the concerned hospital/hospitals from where the deceased took the treatment; viii) all endeavours shall be made by the District Disaster Management Authority/District Administration and even the Grievance Redressal Committee to avoid any technicalities and all concerned authority shall act as a helping hand, so as to wipe off the tears of those who have suffered due to loss of a family member died due to Covid-19; ix) it is further directed that in cases of the death certifications already issued and any family member of the deceased is aggrieved by the cause of death mentioned in the death certificate already issued, it will be open for the aggrieved person to move the appropriate authority who issued the death certificate and/or registering authority and on production of the necessary documents as observed hereinabove, including production of documents, such as, positive RT-PCR/ Molecular Tests/ RAT OR clinically determined through investigations in a hospital/ in-patient facility by a treating physician, while admitted in the hospital/ in-patient facility, the concerned authority shall 22 modify/amend such death certificates. If the person is still aggrieved, it will be open for the aggrieved person to approach the Grievance Redressal Committee constituted as hereinabove and the concerned registering authority shall ratify/amend the death certificate as directed by the Grievance Redressal Committee. 12. The National Disaster Management Authority (NDMA), Ministry of Health and Family Welfare, Union of India are directed to issue guidelines to the concerned States/Union Territories incorporating the directions issued hereinabove which shall be binding to all the States/Union Territories. 13. Miscellaneous Application No. 1120/2021 stands disposed of with the aforesaid directions. ……………………………………J. [M.R. Shah] New Delhi; …………………………………….J. October 04, 2021. [A.S. Bopanna] 23 ITEM NO.6 Court 13 (Video Conferencing) SECTION PIL-W S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Miscellaneous Application No. 1120/2021 in W.P.(C) No. 539/2021 (Arising out of impugned final judgment and order dated 30-06-2021 in W.P.(C) No. No. 539/2021 passed by the Supreme Court Of India) GAURAV KUMAR BANSAL Petitioner(s) VERSUS UNION OF INDIA & ORS. Respondent(s) (FOR ADMISSION and IA No.84308/2021-EXTENSION OF TIME) Date : 04-10-2021 This matter was called on for hearing today. CORAM : HON'BLE MR. JUSTICE M.R. SHAH HON'BLE MR. JUSTICE A.S. BOPANNA For Parties: Mr. Tushar Mehta, SG Mr. K.M. Nataraj, ASG Ms. Aishwarya Bhati, ASG Mr. Rajat Nair, Adv. Mr. Amit Sharma, Adv. Mr. Sughosh Subramanyam, Adv. Mr. B. V. Balaram Das, AOR Petitioner-in-person Mr. Sumeer Sodhi, AOR UPON hearing the counsel the Court made the following O R D E R Miscellaneous Application stands disposed of in terms of the signed reportable Order. Pending applications, if any, also stand disposed of. (R. NATARAJAN) (NISHA TRIPATHI) ASTT. REGISTRAR-cum-PS BRANCH OFFICER (Signed reportable Order is placed on the file)