“PM CARES Fund is a public charitable trust and not
“PM CARES Fund is a public charitable trust and not a government fund.”
Citation: Writ Petition (Civil) No. 546 of 2020
Date of Judgement: 18th August, 2020
Bench: Ashok Bhushan (J), R. Subhash Reddy (J), M. R. Shah(J)
Facts:
- Writ Petition was filed seeking direction to the Union of India to prepare, notify and implement a National Plan under Section 11 read with Section 10 of the Disaster Management Act, 2005 to deal with COVID-19 pandemic and transfer all fund collected in PM CARES Fund to NDRF.
- Petition also seeks direction to the Union of India to lay down minimum standards of relief under Section 12 of the Disaster Management Act, 2005 and directions to utilize National Disaster Response Fund (NDRF) to fight against COVID-19 and all contribution/ grants be made in NDRF and not to PM CARES Fund under Section 46 of the Disaster Management Act, 2005.
Decision of the Apex Court:
Court clarified that the NDRF and PM CARES Fund are two entirely different funds with different object and purpose. Court rejected the prayer of the petitioner to direct all the funds collected in the PM CARES Fund till date to be transferred to the NDRF and 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 and 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.
Key legal issues discussed in the case:
- Whether the Union of India under Section 11 of The Disaster Management 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?
No
Section 11 of the Disaster Management Act, 2005[1] deals with National Plan which was first framed in 2016 and later revised and notified in Nov, 2019. In the executive summary of the National Plan of 2019, new sections were added related to several hazards including “Biological and Public Health Emergencies”. Moreover, the plan was to be periodically improved, which makes it a dynamic document.
Referring to Section 11(3) of the Disaster Management Act, 2005, court observed that the section does not contemplate preparation of Plan after a disaster has occurred. The Act talks about National Plan and guidelines prior to the occurrence of any disaster as a measure of preparedness and not after the disaster has occurred.
The National Disaster Management guidelines of 2008 on “Management of Biological Disasters” specifically notified that Biological Disasters might be caused by epidemics. Court observed that Biological and Public Health Emergencies had already been contemplated in the National Plan of 2019 which includes epidemics. Novel Coronavirus is an epidemic which has become a pandemic.
Hence, COVID-19 is a Biological and Public Health Emergency, which has been specifically covered by National Plan of 2019, which is supplemented by various plans, guidelines and measures. There is no lack or dearth of plans and procedures to deal with COVID-19. So, there is no need to issue any direction to Union of India to prepare, notify and implement a fresh National Disaster Management Plan for COVID-19.
- Whether the Union of India is obliged to lay down the minimum standards of relief under Section 12 of The Disaster Management Act, 2005, for COVID-19 irrespective of earlier guidelines issued under Section 12 of The Disaster Management Act, 2005 laying down the minimum standards of relief?
No
Section 12 of the Disaster Management Act, 2005[2] contemplates minimum standards of relief to be provided to persons affected by disaster. The word ‘disaster’ mentioned in Section 12 covers all the disasters including COVID-19. So, Section 12 does not require different guidelines for minimum standards of relief for different disasters.
COVID-19 was notified as a disaster by Government of India vide order dated 14th March, 2020 for the purpose of providing assistance under State Disaster Response Fund. Considering all these, court held Union of India not obliged to lay down minimum standards of relief under Section 12 of the Disaster Management Act, 2005 and the guidelines issued under Section 12 providing for minimum standards of relief holds good for pandemic COVID-19.
- Whether Union of India is obliged to utilise National Disaster Response Fund created under Section 46 of The Disaster Management Act, 2005[3] for the purpose of providing assistance in the fight of COVID-19?
Yes
Government if India issued order dated 3rd April, 2020 on “Advance release of Central Share from State Disaster Risk Management Fund (SDRMF) for the year 2020-21”. Through this, states were allocated different amounts for the purpose of providing assistance under SDRMF. So, it is cleared that NDRF could be used for any assistance for COVID-19.
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. According to guidelines, expenditure from NDRF is meant to assist a state to provide immediate relief in cases of severe calamity, where the expenditure required is in excess of the balance in the state’s SDRF. Since, states have not exceeded the expenditure in excess of the balance in the state’s SDRF, there is no occasion of asking more fund by the state from NDRF.
- Whether all the contributions/grants from individuals and institutions should be credited to the NDRF in terms of Section 46(1) (b) of The Disaster Management Act, 2005 rather than to PM CARES Fund?
No
Earlier the guidelines provided utilization of NDRF and SDRF for limited calamities which did not include any biological and public health emergency. Only after notification dated 14th march, 2020 which notified COVID-19 as disaster for the purpose of providing assistance under SDRF, any contribution could be made by any person or institution in NDRF with respect to biological and public health emergency like COVID-19.
Court rejected the contention that after the new guidelines, it is not possible for any person or institution to make any contribution to the NDRF as new guidelines contain the same heading, i.e., “Contribution to the NDRF” and guideline 5.2 provides “Funds will be credited into the NDRF in accordance with the provisions of the Section 46(1)(a) & (b) of the Disaster Management Act, 2005.” The guideline 5.2 specifically referred to Section 46(1)(a) & (b) and Section 46(1)(b) expressly provides that any grants that may be made by any person or institution for the purpose of disaster management shall be credited into the NDRF.
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?
No
Court observed that financial planning is the domain of the central government which his made after due deliberation and consideration. PM CARES Fund is a public charitable trust and not a government fund. The mere fact that administration of the trust is vested in trustees will not take away the public character of the trust.[4] The wisdom of trustees to create PM CARES Fund which was constituted with an objective to extend assistance in wake of public health emergency like COVID-19 cannot be questioned.
As 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.
[1] 11. National Plan: (1) There shall be drawn up a plan for disaster management for the whole of the country to be called the National Plan.
(2) The National Plan shall be prepared by the National Executive Committee having regard to the National Policy and in consultation with the State Governments and expert bodies or organizations in the field of disaster management to be approved by the National Authority.
(3) The National Plan shall include – (a) measures to be taken for the prevention of disasters, or the mitigation of their effects;
(b) measures to be taken for the integration of mitigation measures in the development plans;
(c) measures to be taken for preparedness and capacity building to effectively respond to any threatening disaster situations or disaster;
(d) roles and responsibilities of different Ministries or Departments of the Government of India in respect of measures specified in clauses (a), (b) and (c).
(4) The National Plan shall be reviewed and updated annually.
(5) Appropriate provisions shall be made by the Central Government for financing the measures to be carried out under the National Plan.
(6) Copies of the National Plan referred to in sub-sections (2) and (4) shall be made available to the Ministries or Departments of the Government of India and such Ministries or Departments shall draw up their own plans in accordance with National Plan.
[2] 12. Guidelines for minimum standards of relief. —The National Authority shall recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster, which shall include, —
(i) the minimum requirements to be provided in the relief camps in relation to shelter, food, drinking water, medical cover and sanitation;
(ii) the special provisions to be made for widows and orphans;
(iii) ex gratia assistance on account of loss of life as also assistance on account of damage to houses and for restoration of means of livelihood;
(iv) such other relief as may be necessary.
[3] 46. National Disaster Response Fund. — (1) The Central Government may, by notification in the Official Gazette, constitute a fund to be called the National Disaster Response Fund for meeting any threatening disaster situation or disaster and there shall be credited thereto—
(a) an amount which the Central Government may, after due appropriation made by Parliament by law in this behalf provide;
(b) any grants that may be made by any person or institution for the purpose of disaster management.
(2) The National Disaster Response Fund 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 in consultation with the National Authority.
[4] Mulla Gulam Ali & Safiabai D. Trust v. Deelip Kumar & Co., (2003) 11 SCC 772.
