Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ravindra V. Ghuge and B. U. Debadwar, JJ., addressed the issue of dysfunctional ventilators supplied through PM Cares Fund. The Bench remarked,

We find the above situation as regards the dysfunctional ventilators supplied through the PM Cares Fund, to be quite serious. We, therefore, call upon the learned ASGI to state, as to what action would the Union of India initiate in these circumstances.

MUCORMYCOSIS TREATMENT

The State had submitted before the Court that about 1000 hospitals were empanelled in two schemes namely, ‘MJPJAY’ and ‘PMJAY’for treating patients. Out of these 1000 hospitals, 131 were specifically identified as being appropriate facilities for treating Mucormycosis treatment free of cost. It was also submitted that non-governmental hospitals which were amongst these 131 hospitals would be prohibited from charging as per their normal rates while treating patients for Mucormycosis considering the decision of the Government to extend free treatment in such facilities to all the residents of Maharashtra. Further, those private hospitals which were not empanelled under the said schemes would not be covered by the Government Resolution and if any Mucormycosis patient desires to approach a hospital which is not empanelled under the said two schemes, he would have to pay the charges as per the bills raised by such private hospitals.

P. M. CARES FUND VENTILATORS

Insofar as the 150 ventilators received through the PM Cares Fund were concerned, the State government indicated that a company by name, Jyoti CNC had manufactured the said 150 ventilators with the model name ‘Dhaman III’. It was highlighted before the Court that the GMCH had deployed 17 ventilators of which 6 were flawed and was likely to impact the treatment process of the patients. Two extremely serious flaws pertaining to ‘no in-let O2 pressure’ display and ‘patient becoming hypoxic’when on ventilator were noticed which could be life threatening.

It was further demonstrated that 41 ventilators were allotted to 5 private hospitals with the rider that they would not claim ventilators charges from the patients who used them but not a single ventilator was functional and the hospitals had declined to utilise them as a serious threat to the life of the patients exists. Similarly, 37 ventilators available with the GMCH had yet not been un-boxed as the Dean of the GMCH decided not to un-box the remaining 37 ventilators as 113 ventilators which had been put to use suffer from malfunctioning. It was clarified that, on the other hand all the 64 ventilators supplied by several Industrial Establishments were perfectly operational. Considering the above mentioned, the Bench remarked,

We find a serious issue before us as regards the defective functioning of the ventilators. Except the 37 ventilators which are yet to be un-boxed, 113 ventilators put to use are found to be defective.

Noticing some of the politicians have started visiting the Government Medical College and Hospital to find out whether the ventilators are functioning properly or not and some of the politicians have declared that all the ventilators are in good working conditions and some have stated that as the ventilators were lying idle, they have become dysfunctional. Opining that political colour should not be attached to the issue of dysfunctional ventilators as it would cause more botheration to the medical faculty than render assistance, the Bench remarked,

We express our displeasure as regards such indulgence by the people’s representatives. Contrary statements are being issued by the politicians which we find distasteful as some politicians have visited the hospital, posing as if they have the knowledge and the expertise to inspect the ventilators and recommend correctional steps.

In the above backdrop, holding that the situation as regard to the dysfunctional ventilators supplied through the PM Cares Fund was quite serious, the Bench asked the ASGI to state as to what action would the Union of India initiate in these circumstances and what remedial steps would it take.

[Registrar (Judicial) v. Union of India, 2021 SCC OnLine Bom 751, Order dated 25-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Amicus Curiae: Satyajit S. Bora
For State of Maharashtra: Chief PP D. R. Kale
For Union of India: ASGI Ajay G. Talhar
For the respondent 8: Adv. S. G. Chapalgaonkar
For the respondent 22: Adv. K. N. Lokhande
For the respondent 25: Adv. R. K. Ingole

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Sunil B. Shukre and Anil S. Kilor, JJ., while addressing the present public interest litigation held that,

“…no insistence can be made by a person donating his money in his discretion upon making of public disclosures of utilization of the fund money on a public platform bypassing the proper platform provided under the Trust Act applicable to a charitable trust like the “P.M. CARES Fund”.

Petitioner makes it clear that the purpose of the present petition is not to challenge and dispute the creation of the P.M. CARES Fund, the only concern put forward by the petitioner is the presence of an element of seclusion in the fund in its functional and operational dynamics.

Right to know the exact position of the fund

Petitioner submits that as a citizen of India as well as a small donor to the P.M. CARES Fund, he has every right to know the exact position of the account of the fund and as to why all the trustees on the Board of Trustees as per the scheme of the fund have not been nominated by the Hon’ble Chairperson of the fund.

Transparency

Further, the petitioner contends that in the interest of transparency, it is necessary to direct the Board of Trustees to make public all the money received in the fund as of date and also disbursements made from the fund from time to time.

Decision

Bench states that even though the power has been conferred upon Chairperson to nominate three trustees, the power is of enabling nature only making it possible for the Authority to nominate three trustees to the Board, and that there is no further mandate that the power must also be exercised in order to fully constitute the Board of Trustees.

Hence the said submission was rejected by the Court in view of the above-stated reasons.

Transparency

Another point raised by the petitioner was with regard to the issuance of direction to the Authority of the fund to nominate at least two out of three Trustees in the category of eminent persons.

He submitted that it is an admitted fact that the fund so set up is a dedicated national endeavour to provide relief to the persons in a distressed situation, and so there would be a requirement of maintaining high transparency in the operation of the fund and this would be possible if at least from amongst three trustees of eminence, two trustees are nominated and appointed from opposition parties of national character.

Bench for the above-stated contention said that it has no mooring in law.

If there is no provision made in the Trust Deed for inducting some members of the opposition political parties into Board of Trustees by nomination, and there is also no such requirement of law, which is the case here without any dispute, there is no way that an outsider like the petitioner in person would knock at the doors of this Court to invoke the extraordinary jurisdiction of this Court to seek the direction to the trust to amend its Trust Deed.

Audit of the Fund

Issuance of a direction to quash and set aside the unilateral decision taken by the fund, without there being full Board of Trustees, to appoint SARC Associates as Chartered Accountant for conducting the audit of the fund.

Bench observed that it has already been established that the power of the Hon’ble Chairperson of the fund to nominate three eminent persons as trustees is enabling in its nature, not mandating. 

For the purpose of appointment of M/S SARC Associates, Court stated that,

“…an enabling provision confers a discretion on the enabled Authority and that being so, no writ can lie to compel the Authority to exercise the discretion and that too the way it is desired by a party.”

Ensure receipts into the fund are from proper sources and the outgoing from the fund are consistent with funds object.

Why the public disclosure rather than why not the public disclosure?

Court stated that the very object can be seen to be more than fulfilled in the present case by registration of the fund as a charitable trust under the Registration Act, 1908, and making of an appointment of a Chartered Accountant as Auditor who would be bound to balance and audit accounts of the fund in accordance with the provisions contained in the Trust Act.

Bench observed that various statutory provisions contained in the applicable Trust Act provide an effective mechanism to ensure that the working of the charitable trust does not go haywire and that its affairs and properties are managed in a way as to fulfill the objects of the trust.

Judicious use of public interest jurisdiction

Hallmark of public interest litigation is that a class of persons, unable to pursue individual rights, is indirectly before the Court through a person who moves the Court, having no personal interest in the outcome of the proceedings.

Court cited the decision of Supreme Court in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 for the purpose of public interest jurisdiction.

Through various decisions, Supreme Court has also held that, it is only when there is an injury to the public because of the dereliction of constitutional obligations on the part of the government, Court can perhaps scrutinize the impugned action.

Further, having considered the nature and purpose of the public interest litigation jurisdiction and also its perils and pitfalls, a doubt immediately arises whether or not a prayer asking for public disclosure of the receipts into and outgoings from the fund could be looked into even cursorily and on a deeper contemplation on the issue?

Court answered in negative for the above-raised question. It stated that in the Trust Act there is already a mechanism provided to achieve the purpose for which public disclosure has been sought.

Secondly, the Court noted that, the very matter of public interest or curiosity cannot be the subject matter of PIL and that the Constitutional Courts are not expected to conduct the administration of the country, or to be more precise, of a charitable trust.

“When statutory provisions comprehensively covering all aspects of the administration and management of the trust and its properties exist and they also provide a mechanism for effective redressal of grievances in a specific manner, there is no room left for hearing the very grievances by way of a PIL.”

In the case of invoking exceptional public interest jurisdiction, a case raising the points for gross violation of constitutional or statutory provisions must be made out.

While concluding, Court held that no insistence can be made by a person donating his money in his discretion upon making of public disclosures of utilization of the fund money on a public platform bypassing the proper platform provided under the Trust Act applicable to a charitable trust like the “P.M. CARES Fund”.

Hence in view of the above petition was dismissed. [Arvind K. Waghmare v. PM Cares Fund, 2020 SCC OnLine Bom 879, decided on 27-08-2020]


A.K. Waghmare, Advocate and petitioner in person; Anil Singh, Additional Solicitor General of India for respondent 1 to 8; N.P. Mehta, Addl. Government Pleader for Respondents 6 to 8 and S.M. Puranik, Advocate for Respondent 9.

Case BriefsSupreme Court

“When the Central Government is providing financial assistance to the States to contain COVID-19 it is not for any PIL petitioner to say that Centre should give amount from this fund or that fund.”

Supreme Court: Refusing to direct the money in the Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM CARES) Fund to be directed to be deposited or transferred to the National Disaster Response Fund (NDRF), the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has held that

  • there is no statutory prohibition for the Union of India utilizing the NDRF for providing assistance in the fight of COVID-19 in accordance with the guidelines issued for administration of NDRF;
  • there is no statutory prohibition in making any contribution by any person or institution in the NDRF as per Section 46(1)(b) of the Disaster Management Act, 2005.

BACKGROUND OF THE CASE

The Order came in the petition filed by NGO,  Centre for PIL (CPIL), in the wake of Covid-19 pandemic, seeking direction to the Union of India to prepare, notify and implement a National Plan under Section 11 read with Section 10 of the Act, 2005 to deal with current pandemic (COVID-19) and to lay down minimum standards of relief under Section 12 of the Act, 2005 to be provided to persons affected with COVID-19. It further sought for directions to utilize National Disaster Response Fund (NDRF) for the purposes of providing assistance in the fight against COVID-19 and all the contributions/grants from individuals/institutions be credited in NDRF and not to PM CARES Fund and all funds collected in PM CARES Fund till date should be directed to be transferred to NDRF.

“All the contributions made by the individuals and institutions in relation to COVID-19 are being credited into the PM CARES Fund and not in NDRF, which is clear violation of Section 46 of the Act, 2005. The NDRF is subject to CAG Audit and PM CARES Fund is not subject to CAG Audit.”

The NDRF is a statutory fund required to be audited by the Comptroller & Auditor General of India, which was constituted under Act, 2005 and is still in existence for the purposes as enumerated in the statute as well as in the guidelines issued under Act, 2005. The expenditure from NDRF is meant to assist a State to provide immediate relief in those cases of severe calamity, where the expenditure required is in excess of the balance in the State’s SDRF.

The PM CARES Fund has been constituted as a public charitable trust. After outbreak of pandemic COVID-19, need of having a dedicated national fund with objective of dealing with any kind of emergency or distress situation, like posed by the COVID-19 pandemic, and to provide relief to the affected, a fund was created by constituting a trust with Prime Minister as an exofficio Chairman of PM CARES Fund, with other exofficio and nominated Trustees of the Fund. The PM CARES Fund consists entirely of voluntary contributions from individuals/organisations and does not get any Budgetary support. No Government money is credited in the PM CARES Fund.

DETAILED DISCUSSION ON VARIOUS ASPECTS OF THE PETITION

Whether the Union of India under Section 11 of Act, 2005, is obliged to prepare, notify and implement a National Disaster Management Plan specifically for pandemic COVID-19 irrespective of National Disaster Management Plan notified in November, 2019?

The object and purpose of preparing a National Plan is to cope up and tackle with all conceivable disasters which the country may face. It is not conceivable that a National Plan would be framed after the disaster has occurred.

“Biological and Public Health Emergencies has already been contemplated in the National Plan, 2019 and it specifically includes epidemics: Viral, Bacterial, Parasitic, Fungal and prion infections. Novel Coronavirus is an epidemic which has become a pandemic.”

All aspects of the epidemics, all measures to contain an epidemic, preparedness, response, mitigation have been elaborately dealt in Plan, 2019.

The Disaster Management Act, 2005 contain ample powers and measures, which can be taken by the National Disaster Management Authority, National Executive Committee and Central Government to prepare further plans, guidelines and Standard Operating Procedure (SOPs), which in respect to COVID-19 have been done from time to time. Containment Plan for Novel Coronavirus, 2019 has been issued by Ministry of Health and Family Welfare. Hence, there are no lack of guidelines, SOPs and Plan to contain COVID-19, by Nodal Ministry.

Whether the Union of India was obliged to lay down the minimum standards of relief under Section 12 of Act, 2005, for COVID-19 irrespective of earlier guidelines issued under Section 12 of the Act laying down the minimum standards of relief?

Section 12 contemplates minimum standards of relief to be provided to persons affected by disaster. The word ‘disaster’ mentioned in Section 12 encompasses all the disasters including the present disaster. Section 12 does not contemplate that there shall be different guidelines for minimum standards of relief for different disasters.

The uniform guidelines are contemplated so that persons affected by disaster are provided with minimum requirement in the relief camps in respect of shelter, food, drinking water, medical cover and sanitation and other reliefs as contemplated in the section. These guidelines hold good even for those who are affected by COVID-19. Hence,

“Union of India is not obliged to lay down minimum standards of relief under Section 12 of the Act, 2005 for COVID-19 and the guidelines issued under Section 12 providing for minimum standards of relief holds good for pandemic COVID-19 also.”

Whether Union of India is obliged to utilise National Disaster Response Fund created under Section 46 of the Act for the purpose of providing assistance in the fight of COVID-19?

The Court found no substance in the contention that there is any statutory restriction/prohibition in utilization of NDRF for COVID-19. More so when sub-section (2) of Section 46 specifically provides that NDRF shall be made available to the National Executive Committee to be applied towards meeting the expenses for emergency response, relief and rehabilitation in accordance with the guidelines laid down by the Central Government, the NDRF can be used for containment of COVID-19.

“… it is for the Central Government to take the decision as from which fund what financial measures are to be taken and it is neither for PIL petitioner to claim that any financial assistance be made from particular fund nor this Court to sit in judgment over the financial decisions of the Central Government.”

Hence, the Union of India can very well utilize the NDRF for providing assistance in the fight of COVID-19 pandemic by way of releasing fund on the request of the States as per new guidelines.

Whether all the contributions/grants from individuals and institutions should be credited to the NDRF in terms of Section 46(1) (b) of the Act rather than PM CARES Fund?

According to the statutory provisions of Section 46 as well as new guidelines enforced with effect from financial year 64 2015-16 any person or institution can still make contribution to the NDRF.

Further, the PM CARES Fund has been constituted in the year 2020 after outbreak of pandemic COVID-19 whereas the new guidelines came into force with effect from 2015-16, on which date the PM CARES Fund was not in existence, hence, the submission that new guidelines were amended to benefit the PM CARES Fund is wholly misconceived. Hence, it was held,

“Any contribution, grant of any individual or institution is not prohibited to be credited into the NDRF and it is still open for any person or institution to make contribution to the NDRF in terms of Section 46(1)(b) of the Act, 2005. The contribution by any person or by any institution in PM CARES Fund is voluntary and it is open for any person or institution to make contribution to the PM CARES Fund.”

Whether all the funds collected in the PM CARES Fund till date be directed to be transferred to the NDRF?

The PM CARES Fund is a public charitable trust and is not a Government fund. The charitable trusts are public trusts. The mere fact that administration of the Trust is vested in trustees, i.e., a group of people, will not itself take away the public character of the Trust.

“The trust does not receive any Budgetary support or any Government money. It is not open for the petitioner to question the wisdom of trustees to create PM CARES fund which was constituted with an objective to extend assistance in the wake of public health emergency that is pandemic COVID-19.”

The Court further noticed that under the guidelines which were in existence with effect from financial year 2015-16 neither NDRF nor SDRF covered the biological and public health emergencies. It was only by notification dated 14.03.2020 that COVID-19 was treated as notified disaster for the purpose of providing assistance under SDRF. Obviously prior to this notification dated 14.03.2020 no contribution by any person or institution in the NDRF could have been made with respect to specified disaster, namely, biological and public health emergency like COVID-19, Outbreak of COVID-19 in India as well as other countries of the World required immediate enhancement in the infrastructure of medical health and creation of fund to contain COVID-19.

Further, the nature of NDRF and PM CARES Fund are entirely different. The guidelines issued under Act, 2005 with regard to NDRF specifically provides for audit of the NDRF by the Comptroller & Auditor General of India whereas for public charitable trust there is no occasion for audit by the Comptroller & Auditor General of India. Hence,

“The funds collected in the PM CARES Fund are entirely different funds which are funds of a public charitable trust and there is no occasion for issuing any direction to transfer the said funds to the NDRF.”

[Centre for Public Interest Litigation v. Union of India, WRIT PETITION (CIVIL) NO.546 OF 2020, decided on 18.08.2020]