The Hon’ble Supreme Court, on 18th August 2020 in the matter of Centre for Public Interest Litigation vs. Union Of India observed that PM CARES Fund has been constituted as a public charitable trust. For public charitable trust there is no occasion for audit by the CAG (Comptroller & Auditor General of India).
Question(s) before the Hon’ble Supreme Court / Court’s Observation(s):
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?
Section 11 of The Disaster Management Act, 2005, provides that there shall be a plan for Disaster Management for the whole of the Country. (Para 33)
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 does not contemplate preparation of Plan after a disaster has occurred. (Para 34)
National Plan and guidelines as contemplated by the statute for Disaster Management is by its very nature prior to the occurrence of any disaster and as a measure of preparedness. 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. (Para 35)
Biological and Public Health Emergencies has already been contemplated in the National Plan, 2019. Novel Coronavirus is an epidemic which has become a pandemic. Epidemics of different nature and extent have taken place in this country as well as other countries of the world. A pandemic is an epidemic, i.e., spread over multiple countries/ continents. An epidemic, as a disaster has been known and recognized throughout the world with which most of the countries are infected time and again. Plan-2019 is complemented by several plans, Standard Operating Procedures (SOPs), Manuals, Guidelines at all levels of the Government. (Para 36)
COVID-19 being a Biological and Public Health Emergency, which has been specifically covered by National Plan, 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. (Para 40)
National Plan, 2019 have already been there in place supplemented by various orders and measures taken by competent authorities under Disaster Management Act, 2005, there is no occasion or need to issue any direction to Union of India to prepare a fresh National Plan for COVID-19. Union of India is not obliged to prepare, notify and implement a fresh National Disaster Management Plan for COVID-19. (Para 42)
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 The Disaster Management Act, 2005 laying down the minimum standards of relief?
The guidelines which were in existence since before declaration of COVID-19 pandemic, covers all statutory requirement as enumerated in Section 12. 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. (Para 45)
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. 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. . (Para 46)
Section 12 does not contemplate that afresh guidelines for the minimum standards of relief be issued with regard to COVID-19. (Para 46)
Union of India is not obliged to lay down minimum standards of relief under Section 12 of the Disaster Management 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. (Para 48)
Whether Union of India is obliged to utilise National Disaster Response Fund created under Section 46 of The Disaster Management Act, 2005 for the purpose of providing assistance in the fight of COVID-19?
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?
Whether all the funds collected in the PM CARES Fund till date be directed to be transferred to the NDRF?
The NDRF is a statutory fund required to be audited by the Comptroller & Auditor General of India, which was constituted under the Disaster Management Act, 2005 and is still in existence for the purposes as enumerated in the statute as well as in the guidelines issued under the Disaster Management Act, 2005. (Para 58)
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/organisations and does not get any Budgetary support. No Government money is credited in the PM CARES Fund. (Para 59)
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. (Para 65)
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. (Para 66)
The PM CARES Fund is a public charitable trust and is not a Government fund. The charitable trusts are public trusts. (Para 67)
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. (Para 68)
The contributions made by individuals and institutions in the PM CARES Fund are to be released for public purpose to fulfil the objective of the trust. The PM CARES Fund is a charitable trust registered under the Registration Act, 1908. The trust does not receive any Budgetary support or any Government money. (Para 69)
The guidelines issued under the Disaster Management 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. (Para 70)
The NDRF and PM CARES Fund are two entirely different funds with different object and purpose. (Para 72)
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. (Para 72)
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 Disaster Management 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. (Para 72)
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. (Para 72)
Copy of judgment: Judgement_18-Aug-2020
-Adv. Tushar Kaushik