“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]
