Judgement Summary

Centre For Public Interest Litigation v. Union of India

Coram– Ashok Bhushan, J.,R. Subhash Reddy,  M.R. Shah JJ.

Background

  1. The Disaster Management Act, 2005 (hereinafter referred to as “Act, 2005”) was enacted to provide for the effective management of disasters and matters connected therewith or incidental thereto.
  2. The enactment of Disaster Management Act, 2005 was to bring in place requisite institutional mechanisms for drawing up and monitoring the implementation of the Disaster Management Plans and other measures by various wings of the Government for preventing and mitigating effects of disasters.
  3. Although Section 11 of Act, 2005 contemplated preparation of a National Plan, however, the National Plan was not prepared till the year 2016. It was noticed in Swaraj Abhiyan Vs. Union of India & Ors., (2016) 7 SCC 498
  4. In the year 2016, National Disaster Management Plan was prepared as required by Section 11 of the Act, 2005. The preparation of the National Plan under Section 11 was noticed by this Court in Gaurav Kumar Bansal Vs. Union of India and Ors., (2017) 6 SCC 730. This judgment also approves of the fact that state plan and district plans were prepared
  5. The revision of the existing National Disaster Management Plan, 2016 began in April 2017 and completed in November 2019. The National Disaster Management Plan approved by National Disaster Management Authority was notified in November 2019.
  6. This writ petition filed as a public interest litigation and has been filed 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.
  7. Petitioners have also 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.
  8. Petitioner pleads that Centre should come up with detailed guidelines under Section 12(ii) and (iii) of the Act, 2005 recommending special provisions to be made for widows and orphans and ex gratia to be provided to the kith and kin of those losing life not just because of COVID-19 infection but also due to harsh lockdown restrictions.
  9. The petitioner’s case further is that the grants/contributions by individuals and institutions should be credited into the National Disaster Response Fund (NDRF) under Section 46 of the Act, 2005 and NDRF should be utilized for meeting the ongoing COVID-19 crisis. 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.
  10. In the counter affidavit, the respondents (Govt of India) have questioned the locus of the petitioner to file this public interest litigation. Counter affidavit questions as to whether there can be a permanent body set up only to file litigation on issues, which the said body subjectively considers to be of “public interest”.
  11. Govt says-
    1. National Disaster Management Plan as per Section 11 is already in place
    1. Act, 2005 provides for a broad framework in terms of the response to be provided in pursuance to a National Plan in case of any disaster
    1. National Plan does not and cannot contain step by step instructions or specific instructions for the day-to-day management by Government agencies in the situation of any particular and unforeseen disaster.
    1. National Plan is not a document that contains the microscopic details as to the day-to-day management of the issues arising out of different disasters.
    1. National Disaster Management Authority has issued various orders from time to time to take effective measures found required at the relevant point of time to contain the spread of COVID-19 in the country.
    1. National Disaster Management Authority has framed broad template for State level and District level for contingency plan for COVID-19.
    1. The Ministry of Health and Family Welfare has approved the India COVID-19 Emergency Response and Health Systems Preparedness Package of Rs.15000 crores, which seeks to support States/Union Territories in various aspects of management of the COVID Pandemic
    1. there are several funds which are either established earlier or now for carrying out various relief works. PM CARES Fund is one of such funds with voluntary donations
    1. there exist a NDRF which would not prohibit creation of a different fund like PM CARES fund which provides for voluntary donations. The directions prayed in the writ petition for transfer of funds received in PM CARES Fund in the NDRF are non-maintainable.

Issues

  1. 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?
  2. Whether the Union of India is 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, 2005 laying down the minimum standards of relief?
  3. Whether Union of India is obliged to utilize National Disaster Response Fund created under Section 46 of the Act for the purpose of providing assistance in the fight of COVID-19?
  4. 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 to PM CARES Fund?
  5. Whether all the funds collected in the PM CARES Fund till date be directed to be transferred to the NDRF?

Answer to the above question

  1. 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?
    1. The object and purpose of preparing a National Plan is to cope up and tackle with all conceivable disasters which the country may face. When the measures have to be taken for preparedness and capacity building to effectively respond to any threatening disaster situation, the section 11 of the act does not contemplate preparation of Plan after a disaster has occurred.
    1. It is not conceivable that a National Plan would be framed after the disaster has occurred. A National Plan encompasses and contemplate all kinds of disasters
    1. Biological and Public Health Emergencies has already been contemplated in the National Plan, 2019.
    1. An epidemic, as a disaster has been known and recognized throughout the world with which most of the countries are infected time and again. Novel Coronavirus is an epidemic which has become a pandemic
    1. 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.
    1. Containment Plan for Novel Coronavirus, 2019 has been issued by Ministry of Health and Family Welfare, Government of India,
    1. in Gaurav Kumar Bansal Vs. Union of India and Others, (2017) 6 SCC 730, has noticed that National Plan under Section 11 has already been approved by National Disaster Management Authority.
  2. 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?
    1. 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.
    1. 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.
    1. There being already guidelines for minimum standards in place even before COVID-19, the said guidelines for minimum standards holds good even for those who are affected by COVID-19.
    1. 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.
  3. Whether Union of India is obliged to utilize National Disaster Response Fund created under Section 46 of the Act for the purpose of providing assistance in the fight of COVID-19?

And

  • 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?

And

  • Whether all the funds collected in the PM CARES Fund till date be directed to be transferred to the NDRF?
    • All the above points are decided simultaneously
    • 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 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.
    • 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 ex-officio Chairman of PM CARES Fund, with other ex-officio and nominated Trustees of the Fund. The PM CARES Fund consists entirely of voluntary contributions from individuals/organizations and does not get any Budgetary support. No Government money is credited in the PM CARES Fund.
    • contributions by any person or institution for the purpose of disaster management to the NDRF are very much still there in the new guidelines, which have come into force with effect from financial year 2015-16. Somebody not wanting to contribute to PM cares can contribute to NDRF fund
    • 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.
    • When the Centre is providing financial assistance to the State to take measures to contain COVID-19 there is no occasion of asking more fund by the State from NDRF. Because the states have not spent the initial grant by the central government
    • 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. The financial planning is in the domain of the Central Government, which financial planning is made after due deliberation and consideration.
    • 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.
    • The PM CARES Fund is a public charitable trust and is not a government fund.
    • 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 as has been laid down in Mulla Gulam Ali & Safiabai D. Trust Vs. Deelip Kumar & Co., (2003) 11 SCC 772.
    • The contributions made by individuals and institutions in the PM CARES Fund are to be released for public purpose to fulfill the objective of the trust. The PM CARES Fund is a charitable trust registered under the Registration Act, 1908 at New Delhi on 27.03.2020. 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 NDRF and PM CARES Fund are two entirely different funds with different object and purpose.
    • Hence court answers
      • For Q3 – 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.
      • For Q4 – 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.
      • For Q5- 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.
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