Compassion & caution

Covid-19 pandemic is a peculiar disaster… which the country and the world have experienced in a long time. …Its extreme spread and impact require an approach different from the one that is applied to other disasters/natural disasters,” a two-judge bench of the Supreme Court observed presciently on Wednesday, while calling out the government for its failure to provide relief to the next of kin of Covid victims. This recognition of the exceptional circumstances forced on the world by the coronavirus is consistent with several recent judicial orders. Whether in calling out the Centre’s vaccination policy or in pushing states to ramp up healthcare facilities or in demanding sensitivity to the problem of migrants, courts have constantly kept the executive on its toes while being scrupulous to the constitutional principle of separation of powers. On Wednesday too, the SC did the right thing in refusing to specify the relief amount. But the crux of its verdict — directing the National Disaster Management Authority to frame guidelines for compensation to the next of kin of families of those consumed by the virus — raises more questions than answers.

Much of the complication stems from the government’s invocation of the National Disaster Management Act, 2005 in March last year. The SC’s directive of ex-gratia payment, though in sync with the Act, does not do justice to its own reading of the pandemic’s peculiarities. The 2005 law’s definition of a disaster — “a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes” — indicates that it was not framed to cater to the demands of a countrywide public health crisis. Even during the early days of the pandemic, it was clear that the virus is here to stay and learning to live with Covid using vaccination and precaution is the key. That’s why the use of the disaster management law was an ill-advised move in the first place. Invoking it for an ex gratia is entering uncharted waters — it could set a precedent in a country beset with several other health crises in addition to Covid-19. The mistake has been mitigated to an extent with the government placing social security at the centre of some of its post-pandemic policies.

Undoubtedly, Covid’s toll has devastated countless families, deaths have cast a terrible emotional and, in many cases, economic shadow. As the court rightly pointed out, “Deaths have affected families from all classes… Many have lost the sole bread earner”. Such relief is best organised by local governments — indeed, some states have announced steps for those who have lost their sole breadwinner or children who have been orphaned. A one-check solution may not be the most equitable one. The court would have done well in asking local authorities to learn from each other’s experiences. In directing a central authority, the NDMA, to frame guidelines, the SC has attenuated a complex problem.