Centre For Public Interest Litigation vs Union Of India

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.546 OF 2020

CENTRE FOR PUBLIC INTEREST LITIGATION ...PETITIONER(S)

VERSUS

UNION OF INDIA ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

From the beginning of this year, 2020, the world

including our country is in the grip of a pandemic

known as Novel Coronavirus (COVID-19). On

31.12.2019, a cluster of cases of pneumonia of

unknown cause in the city of Wuhan, Hubei Province in

China was reported to the World Health Organisation

(WHO).

Signature Not Verified

This was subsequently identified as a new Digitally signed by MEENAKSHI KOHLI Date: 2020.08.18 15:32:23 IST Reason: virus in January, 2020 and over the following months,

the number of cases continued to rise but were not 2

contained to China and showed exponential growth

worldwide. Due to the global rise in cases, this was

declared a pandemic on 11.03.2020 by the WHO. The

number of affected persons is increasing worldwide.

Although, substantial population is also recovering

from it but India witnessed exponential growth in

number of cases in the last month.

2. The world is familiar with several kinds of

disasters from time immemorial. Every country has

faced one or other disaster in recent memory.

Disasters disturb lives, societies and livelihood

around the world. The impact of disaster is to

strike hard earned economy, development and material

gains. Many of the destructive hazards are natural

in origin and some man made also. The whole world

having faced adverse effect of different kinds of

disasters is now well aware of its ill effect and

steps internationally as well as nationally are being

taken for last several decades to combat different 3

kinds of disasters. U.N. General Assembly

recognizing the importance of reducing the impact of

natural disaster for all people including developing

countries designated 1990 as the international decade

of natural disaster reduction. The International

Strategy for Disaster Reduction (UNISDR) was

established following IDNDR of the 1990s. The UN/GA

convened the second World Conference on Disaster Risk

Reduction (DRR) in Kobe, Hyogo, Japan 2005, which

concluded the review of the Yokohama Strategy and its

Plan of Action and the adoption of the Hyogo

Framework for Action 2005–2015: Building the

Resilience of Nations and Communities to Disasters

(HFA) (UNISDR 2005) by 168 countries. The HFA

outlined five priorities for action:

“(1) Ensure that DRR is a national and a local priority with a strong institutional basis for implementation;

(2) Identify, assess, and monitor disaster risks and enhance early warning;

4 (3) Use knowledge, innovation, and education to build a culture of safety and resilience at all levels;

(4) Reduce the underlying risk factors;

(5) Strengthen disaster preparedness for effective response at all levels.”

3. On 23.12.2005, both the Houses of Indian Parliament

passed a Disaster Management Bill. The Introduction

and the Statement of Objects and Reasons of the Bill

mentions: -

“INTRODUCTION For prevention and mitigation effects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation it has been decided by the Government to enact a law on disaster management to provide for requisite institutional mechanisms for drawing up and monitoring the implementation of the disaster management plans, ensuring measures by various wings of Government. To achieve this objective the Disaster Management Bill was introduced in the Parliament.

STATEMENT OF OBJECTS AND REASONS

The Government have decided to enact a law on disaster management to provide for requisite institutional mechanisms for drawing up and monitoring the 5

implementation of the disaster management plans, ensuring measures by various wings of Government for prevention and mitigating effects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation.”

4. 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.

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. We shall notice the relevant

provisions of the Act a little later.

5. In accord with Disaster Management Act, 2005, Union

Cabinet approved a “National Policy on Disaster 6

Management, 2009”. Paragraph 1.1.1, 1.2.1 and 1.3.1

of the policy reads as under: -

“1.1.1 Disasters disrupt progress and destroy the hard-earned fruits of painstaking developmental efforts, often pushing nations, in quest for progress, back by several decades. Thus, efficient management of disasters, rather than mere response to their occurrence, has in recent times, received increased attention both within India and abroad. This is as much a result of the recognition of the increasing frequency and intensity of disasters, as it is an acknowledgement that good governance in a caring and civilised society, needs to deal effectively with the devastating impact of disasters.

1.2.1 India is vulnerable, in varying degrees, to a large number of natural as well as man-made disasters. 58.6 per cent of the landmass is prone to earthquakes of moderate to very high intensity; over 40 million hectares (12 per cent of land) is prone to floods and river erosion; of the 7,516 km long coastline, close to 5,700 km is prone to cyclones and tsunamis; 68 per cent of the cultivable area is vulnerable to drought and hilly areas are at risk from landslides and avalanches.

Vulnerability to disasters/emergencies of Chemical, Biological, Radiological and Nuclear (CBRN) origin also exists.

Heightened vulnerabilities to disaster risks can be related to expanding population, urbanisation and industrialisation, development within 7

high-risk zones, environmental degradation and climate change (Maps 1–4).

1.3.1 On 23 December 2005, the Government of India (GoI) took a defining step by enacting the Disaster Management Act, 2005, (hereinafter referred to as the Act) which envisaged the creation of the National Disaster Management Authority (NDMA), headed by the Prime Minister, State Disaster Management Authorities (SDMAs) headed by the Chief Ministers, and District Disaster Management Authorities (DDMAs) headed by the District Collector or District Magistrate or Deputy Commissioner as the case may be, to spearhead and adopt a holistic and integrated approach to DM. There will be a paradigm shift, from the erstwhile relief-

centric response to a proactive prevention, mitigation and preparedness-

driven approach for conserving developmental gains and to minimise loss of life, livelihood and property.”

The policy noticed institutional framework under

the Act, dealt with financial arrangement, disaster

prevention, mitigation and preparedness.

6. Third U.N. World Conference on Disaster Risk

Reduction was held in March, 2015 at Sendai, Japan.

One of the declarations made in the conference was: - 8

“We, the Heads of State and Government, ministers and delegates participating in the Third United Nations World Conference on Disaster Risk Reduction, have gathered from 14 to 18 March 2015 in Sendai City of Miyagi Prefecture in Japan, which has demonstrated a vibrant recovery from the Great East Japan Earthquake in March 2011. Recognizing the increasing impact of disasters and their complexity in many parts of the world, we declare our determination to enhance our efforts to strengthen disaster risk reduction to reduce disaster losses of lives and assets from disasters worldwide.”

7. The Sendai declaration dealing with priorities for

action emphasized following in paragraph 33(a):-

”33(a) To prepare or review and periodically update disaster preparedness and contingency

policies, plans and programmes with the involvement of the relevant institutions, considering climate change scenarios and their impact on disaster risk, and facilitating, as appropriate, the participation of all sectors and relevant stakeholders;”

8. Although Section 11 of Act, 2005 contemplated

preparation of a National Plan, however, the National

Plan was not prepared till the year 2016 as was 9

noticed by this Court in a judgment of this Court in

Swaraj Abhiyan Vs. Union of India & Ors., (2016) 7

SCC 498. 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. In the same judgment, this

Court noticed that State Plan under Section 23 of the

Act (except by two States) and District Plan have

also been prepared. The preparation of National

Plan, State Plan and District Plan were noticed in

paragraphs 7, 11 and 12 of the above judgment, which

are to the following effect:-

“7. It was further pointed out that a National Plan has been approved and placed on the website of the NDMA in terms of Section 11 of the Act and the guidelines for minimum standards of relief Under Section 12 of the Act have also been placed on the website of the NDMA.

11. As far as the preparation of the State Plan Under Section 23 of the Act is concerned, we have been informed by the learned Counsel for NDMA that all States 10

except Andhra Pradesh and Telangana have prepared a State Disaster Management Plan which is very much in place.

12. As far as the districts are concerned, it is stated that the District Disaster Management Authority has been constituted in every district Under Section 25 of the Act and out of 684 districts in the country, a District Disaster Management Plan is in place in 615 districts while it is under process in the remaining districts.”

9. 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.

10. This writ petition filed as a public interest

litigation 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 11

minimum standards of relief under Section 12 of the

Act, 2005 to be provided to persons affected with

COVID-19. 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. It is useful to

note the specific prayers (a) to (c) made in the writ

petition: -

“a. Issue a writ, order or 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 the ongoing COVID-19 pandemic;

b. Issue a writ, order or direction to the Union of India to lay down minimum standards of relief, under Section 12 of the Disaster Management Act, 2005, to be provided to persons affected by the COVID-19 virus, as well as by the resultant national lockdown;

12 c. Issue a writ, order or direction to the Union of India to utilize NDRF for the purpose of providing assistance in the fight against GOVID-19 pandemic in compliance with Section 46 of the DM Act, all the contributions/grants from individuals and institutions shall be credited to the NDRF in terms of Section 46(1)(b) rather than to PM CARES Fund and all the fund collected in the PM CARES Fund till date may be directed to be transferred to the NDRF;”

11. We have heard Shri Dushyant Dave, learned senior

counsel for the petitioner. Shri Kapil Sibal has

also made his submissions in support of the prayers

and issues raised in the writ petition while

addressing his submissions in Suo Moto Writ Petition

No. 6 of 2020. We have also heard Shri Tushar Mehta,

learned Solicitor General appearing for the Union of

India.

12. Petitioner’s case in the writ petition is that

the National Plan uploaded on the website of National

Disaster Management Authority of the year 2019 does

not deal with situations arising out of the current 13

pandemic and has no mention of measures like

lockdown, containment zones, social distancing etc.

The Central Government has notified COVID-19 as a

“disaster” under Act, 2005 and has issued series of

notifications to contain the instant pandemic.

Petitioner pleads that Centre need to prepare a well-

drawn National Plan to deal with instant pandemic and

the same need to be prepared after due consultation

with the State Government and experts. Petitioner

further pleads that Centre should come up with

detailed guidelines recommending the minimum

standards of relief to be provided in the relief

camps in relation to shelter, food, drinking water,

medical cover and sanitation, in absence of which,

shelter homes and relief camps are susceptible of

becoming hotbeds for the spread of COVID-19

infection. 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 14

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.

13. 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.

Petitioner’s case further is that the Centre may be

directed to utilize NDRF for the purpose of drawing

assistance to fight against COVID-19 and all the

contributions/grants from individuals and

institutions be credited to the NDRF in terms of 15 Section 46(1)(b) rather than to PM CARES Fund and all

the Fund Collected in the PM CARES Fund till date may

be directed to be transferred to the NDRF.

14. A preliminary counter affidavit has been filed on

behalf of the Union of India. In the counter

affidavit, the respondents 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”.

Counter affidavit pleads that National Disaster

Management Plan as per Section 11 is already in place

and relevant portion of National Disaster Management

Plan – November, 2019 has been annexed as Annexure R-

1 to the counter affidavit. Counter affidavit pleads

that 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. Counter

affidavit pleads that National Plan does not and 16

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. 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. 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. The Chairperson

of National Executive Committee has issued several

guidelines from time to time. National Disaster

Management Authority has, in order to create

preparedness with regard to any contingent biological

disaster, has framed the “National Disaster

Management Guidelines Management of Biological

Disasters”. National Disaster Management Authority

has framed broad template for State level and

District level for contingency plan for COVID-19. 17

The Nodal Ministry, i.e., Ministry of Health and

Family Welfare has issued a “Cluster Containment Plan

for COVID-19” on 02.03.2020, which was further

updated on 16.05.2020. Further instructions have

been issued from time to time including the guidance

documents. 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 and provides support for establishment

of COVID dedicated facilities for treatment of COVID-

19 cases including for critical care, enhancement in

testing capacities, engagement and training of

necessary human resources and procurement of

essential equipment and protective gear for the

health care personnel engaged in COVID-19 duties etc.

With regard to minimum standards of relief, the

counter affidavit refers and relies on guidelines on

Minimum Standards of Relief under Section 12, which 18

has been brought on record as Annexure R-7. The

Counter affidavit also outlines various steps taken

by Health Ministry as well as the Government of

India.

15. Replying the averments in the writ petition

regarding PM CARES Fund and NDRF, the counter

affidavit pleads that 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. Affidavit

further states that 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.

16. Shri Dushyant Dave, learned senior counsel

appearing for the petitioner referring to the

pleadings of the petitioner made in the writ petition 19

contends that Centre was obliged to prepare a

National Plan for Disaster Management specifically

for COVID-19. Shri Dave does not dispute that

National Plan under Section 11 has been framed in

November, 2019 but he submits that said Plan is

neither comprehensive nor covers management of

pandemic, i.e., COVID-19. Shri Dave submits that

power given in a Statute is to be exercised in the

same manner. Shri Dave further submits that there is

a serious problem in implementing the National Plan,

2019. Shri Dave has taken us to certain portion of

Plan of November, 2019, which has been filed as

Annexure – P-2 to the writ petition. Shri Dave

submits that only paragraph 7.15 deals with

biological and public health emergencies but Plan

does not contemplate giving any financial relief.

Shri Dave submits that unless there is a National

Plan for COVID-19, effective measures cannot be taken

to contain COVID-19. Referring to Section 46 of the

Act, 2005, Shri Dave submits that NDRF having been 20

constituted by Central Government, all amount given

by individuals and organisations for disaster should

have been credited in NDRF. He submits that PM CARES

Fund should not have been constituted when NDRF is

already in place to take care of disasters. Shri

Dave submits that there is no provision in 2019 Plan

to give fund to NDRF. Referring to Operational

Guidelines for Constitution and Administration of the

National Disaster Response Fund at page 129 of the

writ petition, Shri Dave submits that paragraph 5.5

provides that contribution made by the persons or

institutions for the purpose of disaster management

to be credited in the NDRF, which clause 5.5 has been

omitted in the subsequent Operational Guidelines for

Constitution and Administration of the National

Disaster Response Fund filed at page 154, which is

recent guidelines. By deletion of clause 5.5 now

contribution by any person or institution for the

purpose of disaster management to the NDRF is not

permissible. Shri Dave submits that petitioners have 21

no reason to doubt the bonafide of PM CARES Fund but

by creating PM CARES Fund the NDRF is being

circumvented. What cannot be done directly cannot be

done indirectly. Although, NDRF is audited by CAG,

the PM CARES Fund is audited by only private

auditors.

17. Shri Tushar Mehta, learned Solicitor General

refuting the submissions of the counsel for the

petitioners submits that reliefs (i) and (ii) made in

the writ petition has become infructuous since

National Plan has already been prepared under Section

11, which has been referred to in the counter

affidavit and relevant extract of the Plan has

already been brought on record as Annexure R-1 along

with counter affidavit. He submits that insofar as

the guidelines for minimum standards of reliefs are

concerned, there are guidelines in existence, which

has been brought on record by the counter affidavit,

which covers all disasters including COVID-19. Shri 22

Mehta submits that Plan – November, 2019 along with

the powers given in the Act, 2005 contains several

measures to contain the spread of COVID-19 and no

separate National Plan is required for COVID-19.

18. Shri Tushar Mehta submits that a National

Disaster Response Fund has been created as stipulated

under Section 46 of Act, 2005, which consist of fund

in the form of budgetary provisions made by the

Central Government in National Disaster Response

Fund. He submits that the existence of National

Disaster Response Fund, which is a statutory fund,

neither prevents creation of any public charitable

trust receiving voluntary donation nor can remotely

mean that the amount received in all such voluntary

funds should go in the statutory fund created under

Section 46. National Disaster Response Fund and PM

CARES Fund being distinct and separate, there is no

occasion for any direction to transfer the amount of

PM CARES Fund to the National Disaster Response Fund. 23

19. We have heard the learned counsel for the parties

and perused the record. Applications for intervention

are rejected.

20. The respondent in its affidavit has raised

contention/objection regarding the locus standi of

the petitioner. It is, inter alia, contended that

there cannot be a permanent body existing only for

filing public interest litigations. Shri Tushar

Mehta, learned Solicitor General, however, pointed

out that at the outset, in the facts of the present

case, he would rather like to assist the Hon’ble

court on merits and requested that the question of

locus standi of the petitioner which, according to

him is a very serious question, be left open to be

raised and decided in other proceedings. We have,

therefore, heard the parties on merits, keeping the

aforesaid question open, to be heard and decided in

an appropriate proceeding.

24

21. From the submissions of the learned counsel for

the parties and the pleadings on record, following

questions arise for consideration in this writ

petition: -

I) 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?

II) 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?

III) Whether Union of India is obliged to utilise

National Disaster Response Fund created under 25 Section 46 of the Act for the purpose of

providing assistance in the fight of COVID-19?

IV) 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?

V) Whether all the funds collected in the PM CARES

Fund till date be directed to be transferred to

the NDRF?

QUESTION NO.I

I) 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?

22. The Act, 2005, has been enacted for the effective

management of Disasters and for matters connected

therewith or incidental thereto. Section 3 of the

Act constitutes National Disaster Management

Authority with the Prime Minister of India as the 26

Chairperson, ex-officio. Section 6 enumerates the

powers and functions of National Authority. As per

Section 6 sub-Section (2)(b), National Disaster

Management Authority (hereinafter referred to as

National Authority) is to approve the National Plan.

Under Section 7, the National Authority may

constitute an advisory Committee consisting of

experts in the field of Disaster Management to make

recommendations on different aspects of Disaster

Management. Under Section 8, the Central Government

is to constitute a National Executive Committee to

assist the National Authority in the performance of

its functions under the Act. Section 11 of the Act

deals with National Plan, which provision is to the

following effect: -

“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 27

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 28

and such Ministries or Departments shall draw up their own plans in accordance with National Plan.”

23. As noted above, the first National Plan under

Section 11 was framed in the year 2016, which was

revised and the National Plan was prepared and

notified in November, 2019. Extract of National

Disaster Management Plan of November, 2019 has been

brought on record both by the petitioner as

Annexure-P2 to the writ petition as well as by the

respondent as Annexure-R1 to the preliminary counter

affidavit.

24. We may notice certain relevant portions of the

Plan, 2019 to answer the question which is up for

consideration. The Plan, 2019 under heading

‘Executive Summary’ states: -

“...The National Disaster Management Plan (NDMP) provides a framework and direction to the government agencies for all phases of disaster management cycle. The NDMP is a “dynamic document” in the sense that it will be periodically improved keeping up with the emerging global best practices and knowledge base 29

in disaster management. It is in accordance with the provisions of the DM Act, 2005, the guidance given in the National Policy on Disaster Management (NPDM) 2009, and the established national practices...”

25. In the Executive summary itself, while noticing

the changes introduced, the Plan states that new

sections have been added relating to several hazards

including “Biological and Public Health

Emergencies”. The Plan, 2019 provides a framework

and directions to the Government Agencies for all

phases of Disaster Management. The Plan is a dynamic

document in the sense that it was to be periodically

improved, keeping up with the best practices and

knowledge based in Disaster Management. The Plan

provides a framework covering all aspects of

Disaster Management. It covers Disaster Risk

Reduction, mitigation, preparedness, response,

recovery and building back better. It recognizes

that effective Disaster Management necessitates a

comprehensive framework encompassing multiple 30

hazards. Paragraph 1.4 of the Plan under the heading

‘Legal Mandate’ states: -

“1.4. Legal Mandate

Section 11 of the DM Act 2005 mandates that there shall be a National Disaster Management Plan (NDMP) for the whole of India. The NDMP complies with the National Policy on Disaster Management (NPDM) of 2009 and conforms to the provisions of the DM Act making it mandatory for the various central ministries and departments to have adequate DM plans. While the NDMP will pertain to the disaster management for the whole of the country, the hazard-specific nodal ministries and departments notified by the Government of India will prepare detailed DM plans specific to the disaster assigned. As per Section 37 of the DM Act, every ministry and department of the Government of India, be it hazard-specific nodal ministries or not, shall prepare comprehensive DM plans detailing how each of them will contribute to the national efforts in the domains of disaster prevention, preparedness, response, and recovery.

As per the mandate of the DM Act, the NDMP assigns specific and general responsibilities to all ministries and departments for disaster management. The DM Act enjoins the NDMP to assign necessary responsibilities to various ministries to support and implement the plan. Therefore, it is incumbent on all ministries to accept all the implicit and explicit responsibilities mentioned in the 31

NDMP even if they are beyond what are explicitly mentioned in the normal rules of business. Disaster management requires assumption of responsibilities beyond the normal functioning. The NDMP will be complemented by separate contingency plans, SOPs, manuals, and guidelines at all levels of the multi-tiered governance system.”

26. The above part of the Plan categorically states

that the Plan will be complemented by several

contingency plans, Standard Operating Procedures

(SOPs), Manuals and Guidelines at all levels of the

multi-tiered governance system. Paragraph 1.13 deals

with ‘types of Disasters’. Paragraph 1.13.1,

‘Natural Hazards’ have been enumerated in five major

categories. Sub-category (5) is to the following

effect:-

“1.13.1 Natural Hazards

1)...

5)Biological Process or phenomenon or organic origin or conveyed by biological vectors, including exposure to pathogenic micro-organisms, toxins and bioactive substances that may cause loss of life, injury, illness or other health impacts, property damage, loss of livelihoods and services, social and 32

economic disruption or environmental damage.”

27. Under Table 1-1, ‘Categories of Natural Hazards’

have been detailed. Item (5) of the Table 1-1 is to

the following effect: -

“Table 1-1: Categories of Natural Hazards

Family Main Short Event Description/ Secondary Disaster 1 Geophysical 2 Hydrological 3 Meteorological 4 Climatological 5 Biological Exposure to  Epidemics:

germs and Viral, toxic bacterial substances parasitic, fungal, or prion infections  Insect infestatio ns  Animal stampedes

28. Table 1-3, provides for ‘Nodal Ministry for

Management/Mitigation of Different Disasters’ with

regard to Biological Emergencies, Nodal Ministry is 33

notified as Ministry of Health and Family

Welfare(MoHFW). Under paragraph 2.2.3.3, Biological

and Public Health Emergencies have been dealt with.

The First paragraph of the above is as follows:-

“...Disasters related to this sub- group are biological emergencies and epidemics, pest attacks, cattle epidemics and food poisoning. Biological emergency is one caused due to natural outbreaks of epidemics or intentional use of biological agents (viruses and microorganisms) or toxins through dissemination of such agents in ways to harm human population, food crops and livestock to cause outbreaks of diseases. This may happen through natural, accidental, or deliberate dispersal of such harmful agents into food, water, air, soil or into plants, crops, or livestock. Apart from the natural transnational movement of the pathogenic organisms, their potential use as weapons of biological warfare and bioterrorism has become far more important now than ever before. Along with nuclear and chemical agents, many biological agents are now considered as capable of causing large-scale mortality and morbidity...”

29. Paragraphs 6 and 7 deals with “Building Disaster

Resilience - Responsibility Framework, Part A and B”.

Dealing with Biological and Public Health Emergencies 34

in paragraph 7.15, following are the sub-heads under

the paragraph: -

“7.15 Biological and Public Health Emergencies (BPHE)

7.15.1 Understanding Risk

7.15.2 Inter-Agency Coordination

7.15.3 Investing in DRR–Structural Measures

7.15.4 Investing in DRR- Non-structural Measures

7.15.5 Capacity Development

7.15.6 Climate Change Risk Management”

30. A detailed chart has been prepared under

paragraph 7.15 in five parts and it shall be useful

to notice the only first portion of paragraph 7.15.1,

item 1, which is to the following effect: -

“7.15.1 Understanding Risk

Biological & Public Health Emergencies (BPHE)

Sub-Thematic Central/State Agencies and their Responsibilities Area for DRR Centre# Responsibility State# Responsibility

- Centre -State 35

Recurring/ Recurring/ Regular(RR) Regular(RR) Maintaining Observation MHFW*  Support for HFWD*, preventive

1. Networks, (NCDC), training DMD$, measures as per Information MAFW, MHA,  Extend SDMA, RD, norms Systems, MOD, MOES, technical DRD, UDD, Monitoring, MOEFCC, MOR, support DWSD, Short Term(T1) Research, MLBE, MEITY, EDD, PD, Strengthening Forecasting, NDMA Medium Term(T2) EFD, AHD, integrated health Early Warning  Establishment WCD, surveillance and of Early PRI/ULB, systems Zoning/Mapping Warning System SLRTI,  Strengthening DDMA IDSP and early warning systems Medium Term(T2) at regional levels  Establishing and maintain  Epidemiological community-based disease mapping network for  Health sharing alerts facilities mapping  Strengthening IDSP

Long Term(T3) States should, modify or adapt IMD’s warning system according to thresholds applicable in each state

31. The other items apart from item (1) as noticed

above in paragraph 7, which are relevant is as

follows:-

Biological & Public Health Emergencies (BPHE)

Sub-Thematic Central/State Agencies and their Responsibilities Area for DRR Centre# Responsibility - State# Responsibility Centre -State 36

2. Hazard Risk MHFW*, Recurring/ HFWD, Recurring/ Vulnerability MAFW*, MHA, Regular (RR) DMD$, Regular (RR) and Capacity MOD, MOES, • Promote studies, SDMA,  Updating HRVCA Assessment MOEFCC, documentation DRD, (HRVCA) MSJE, NDMA and research UDD,  Identifying DWSD, the vulnerable • Provide Training population/ EFD, & Technical communities/ AHD, support settlements WCD, • Studies on DSJE,  Identification vulnerabilities PRI, of groups and capacities ULB, requiring covering SLRTI, special social, DDMA attention physical, economic,  Conduct audit ecological, of equipment gender, social and hu man inclusion and resource equity aspects requirements Short-Term (T1) Short term(T1) Constitute/ Develop guidelines strengthen the mechanisms for consultation with experts and stakeholders 3 Dissemination MHFW, MHA, Recurring/ HFWD*, Short Term (T1) of warnings, MOD, MOES, Regular (RR) DMD$,  Create data & MAFW,  Support for SDMA, awareness information MOEFCC, organising DRD, preventive NDMA training UDD, measures DWSD,  Extend technical EDD,  Extensive IEC support PD, campaigns to EFD, create AHD, awareness WCD, through print, PRI, electronic and ULB, social media SLRTI, DDMA Medium Term (T2) Specific messages for highly vulnerable groups such as elderly, young children, outdoor workers and slum 37

residents

4 Disaster Data MHA* , Recurring/ DMD$, Recurring/ Collection MOSPI, all Regular (RR) SDMA, Regular (RR) and ministries/ Systematic data all Systematic data Management depts. management of data depts. management of on disaster damage data on disaster and loss damage and loss assessments assessments

Short Term (T1) Short Term (T1) Disaster Damage and Disaster Damage Losses 2005-2015 and Losses 2005-

baseline 2015 baseline

Notes: (#) Every ministry, department or agency of the government – central and state – not specifically mentioned will also have both direct and indirect supporting role depending on the disaster, location and context. (*) The ministry, department or agency with this symbol has or is deemed to have a nodal or lead role, while others mentioned have a direct or explicit supporting role. ($) DMD —Disaster Management Department: The state government department acting as the nodal department for disaster management, which is not the same in every state/UT.

32. Paragraph 7.15.2 deals with inter-agency

coordination in these items. Paragraph 7.15.3 deals

with investing in DRR – Structural measures.

Paragraph 7.15.4 deals with investing in DRR – Non-

structural measures. Paragraph 7.15.5 deals with

capacity development. Paragraph 7.15.6 deals with

climate change risk management. The plan, thus, 38

contains detailed treatment of Biological and Public

Health Emergencies as noticed above, which have been

detailed at pages 117 to 130 of the Annexure-R1 of

the counter affidavit. All aspects of Biological and

Public Health Emergencies have been, thus, dealt in

systematic and planned manner. The Plan of 2019 in

different paragraphs deals with entire framework.

33. The submission which has been pressed by

petitioner is that despite existence of Plan, 2019,

there has to be specific Plan dealing with COVID-19,

hence, Union of India may be directed to prepare a

National Plan under Section 11 for COVID-19. Section

11 of the Act provides that there shall be a plan for

Disaster Management for the whole of the Country.

Sub-Section (3) of Section 11 requires that the

National Plan shall include: -

“11.(3) The National Plan shall include-

(a) measures to be taken for the prevention of disasters, or the mitigation of their effects;

39 (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). ”

34. 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.

35. 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 40

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.

36. As noticed above, Biological and Public Health

Emergencies has already been contemplated in the

National Plan, 2019, which as noticed in table 1-1

under paragraph 1.13.1 specifically includes

epidemics: Viral, Bacterial, Parasitic, Fungal and

prion infections. 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. As

noticed above, Plan-2019 is complemented by several 41

plans, Standard Operating Procedures (SOPs), Manuals,

Guidelines at all levels of the Government.

37. The National Disaster Management Authority,

Government of India, had issued National Disaster

Management Guidelines in July, 2008 on subject

“Management of Biological Disasters”. The guideline

specifically notices that “Biological Disasters”

might be caused by epidemics, the guidelines states:-

“Biological disasters might be caused by epidemics, accidental release of virulent microorganism(s) or Bioterrorism (BT) with the use of biological agents such as anthrax, smallpox, etc. The existence of infectious diseases has been known among human communities and civilisations since the dawn of the history. The Classical literature of nearly all civilisations record the ability of major infections to decimate populations, thwart military campaigns and unsettle nations. Social upheavals caused by epidemics have contributed in shaping history over the ages...”

38. Thus, the National Disaster Management Authority

was well aware of the epidemics and had issued 42

guidelines in the year 2008 itself which has been

further detailed in Plan-2019. All aspects of the

epidemics, all measures to contain an epidemic,

preparedness, response, mitigation have been

elaborately dealt in Plan, 2019. Unless the National

Plan as contemplated under Section 11 contains all

aspects of disaster including the Biological and

Public Health Emergencies, it will not be possible

for the Governments to immediately respond and

contain an epidemic.

39. 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, Government of India, 43

copy of which updated up to 16.05.2020 has been

brought on record as Annexure-R4. There are no lack

of guidelines, SOPs and Plan to contain COVID-19, by

Nodal Ministry and Annexure R-6 has been brought on

record issued by Ministry of Health and Family

Welfare, Government of India, i.e., Updated

Containment Plan for Large Outbreaks Novel

Coronavirus Disease, 2019 (COVID-19).

40. National Executive Committee as well as Nodal

Ministry has issued guidelines and orders from time

to time to regulate all measures to contain COVID-19.

The petitioners are not right in their submissions

that there is no sufficient plan to deal with COVID-

19 pandemic. 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.

44

41. We may also notice that this Court 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. In paragraph 7 of the judgment,

following was laid down: -

“7. It was further pointed out that a National plan has been approved and placed on the website of NDMA in terms of Section 11 of the Act and the guidelines for minimum standards of relief under Section 12 of the Act have also been placed on the website of NDMA.”

42. In view of above discussion, we do not find any

merit in the claim of the petitioner that Union of

India be directed to prepare a National Plan under

Section 11 for COVID-19. 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 45

India to prepare a fresh National Plan for COVID-19.

We, thus, hold that Union of India is not obliged to

prepare, notify and implement a fresh National

Disaster Management Plan for COVID-19.

QUESTION NO.II

II) 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?

43. Section 12 of the Act, deals with guidelines for

Minimum Standards of Relief. Section 12 is as

follows:-

“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;

46 (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.”

44. The petitioner’s case as noticed above is that

the Centre should come up with detailed guidelines

under Section 12(ii) and (iii) of Disaster Management

Act, 2005, recommending special provisions to be made

for widows and orphans and ex-gratia assistance to be

provided to the kith and kin of those losing life

because of COVID-19 infections but also as a result

of harsh lockdown restrictions. It is submitted that

there are no guidelines providing for minimum

standards for COVID-19. The above claim of the

petitioner is refuted by the respondents. The

respondents have brought on record the guidelines of

minimum standards of relief under Section 12 as 47

existing prior to COVID-19, which has been filed as

Annexure-R7 to the counter affidavit. The guidelines

filed as Annexure-R7 deals with

(i) definition of Relief and Rehabilitation

Camp,

(ii) Minimum standards in respect of Shelter in

relief camps,

(iii) Minimum Standards in respect of Food in

relief camps,

(iv) Minimum Standards in respect of Water in

relief camps,

(v) Minimum Standards in respect of Sanitation

in relief camps,

(vi) Minimum Standards in respect of medical

cover in relief camps and

(vii) Minimum Standards of Relief for Widows and

Orphans.

45. The guidelines brought on record under Annexure-

R7, which were in existence since before declaration 48

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.

46. 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. Section 12 does

not contemplate that afresh guidelines for the 49

minimum standards of relief be issued with regard to

COVID-19. The prayer of the petitioner to direct the

Union of India to issue fresh guidelines under

Section 12 to be provided to persons infected with

COVID-19 is misconceived.

47. The Government of India vide order dated

14.03.2020 has decided to treat COVID-19, the

pandemic, as a notified disaster for the purpose of

providing assistance under State Disaster Response

Fund, norms of assistance for ex-gratia payment to

families of deceased persons, norms of assistance for

COVID-19 positive persons requiring hospitalization

and some other assistance to be provided from State

Disaster Response Fund have been notified by the

Government of India.

48. In view of the foregoing discussions, we hold

that Union of India is not obliged to lay down

minimum standards of relief under Section 12 of the 50

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.

QUESTION NOS. 3, 4 AND 5

III) 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?

IV) 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?

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

49. All the three questions being inter-related are

taken together. The submissions of the petitioner

centre around National Disaster Response Fund (NDRF)

and PM CARES Fund. We need to notice the nature and

character of these funds for appreciating the

submissions made by the learned counsel for the

parties. Chapter IX of the Disaster Management Act,

2005 deals with Finance, Accounts and Audit. Section 51 46 provides for National Disaster Response Fund.

Section 46 reads:

“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.”

50. The Central Government by notification dated

27.09.2010 which was published in Gazette

Extraordinary on 28.09.2010 issued under sub-Section 52

(1) of Section 46 of Act, 2005 constituted “National

Disaster Response Fund”. The notification dated

27.09.2010 reads:

“MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 27th September, 2010

s.O.2346(E).- In exercise of the powers conferred by sub-section (1) of Section 46 of the Disaster Management Act, 2005 (53 of 2005), the Central Government hereby constitutes the National Disaster Response Fund (hereinafter NDRF) for meeting any threatening disaster situation or disaster.

[F.No.32-3/2010-NDM-I] R.K.SRIVASTAVA, Jr. Secy.”

51. Ministry of Home Affairs (Disaster Management

Division) has issued guidelines on Constitution and

Administration of the National Disaster Response Fund

(NDRF). Section 46(1) as noted above contemplates

crediting of two kind of amounts, i.e., (a) an amount

which the Central Government may, after due

appropriation made by Parliament by law in this 53

behalf provide; and (b)any grants that may be made by

any person or institution for the purpose of disaster

management.

52. The guidelines for constitution and

administration of NDRF have been brought on record by

the petitioner at page 129 of the writ petition. The

guidelines came into force with effect from financial

year 2010-11. Paragraph 3.1 enumerated the calamities

covered under NDRF. Paragraph 3.1 is as follows:

“3.1 Natural calamities of cyclone, drought, earthquake, fire, flood, tsunami, hailstorm, landslide, avalanche, cloud burst and pest attack considered to be of severe nature by Government of India and requiring expenditure by a State Government in excess of the balances available in its own State Disaster Response Fund (SDRF), will qualify for immediate relief assistance from NDRF.”

53. Paragraph 5 of the guidelines deals with

contribution to the NDRF. Paragraphs 5.1 to 5.5 are

as follows:

“5.1 The closing balance of the NCCF at the end of financial year 2009-10 shall be 54

the opening balance of the NDRF in the year 2010-11.

5.2 Funds will be credited into the NDRF in accordance with the provisions of the Disaster Management Act, 2005.

5.3 The budget provision for transferring funds to the NDRF as mentioned in para 5.2 above shall be made in the Demand for grants no. 35- “Transfers to State and UT Governments” (under non-plan provision).

Releases to State Governments will be made by the Ministry of Finance from this provision.

5.4 During the years 2010-15 transfers to the NDRF established in the Public Account of India will be made by operating the following heads of account: Major Head “2245-Relief on account of Natural Calamities – 80- General-797-Transfers to Reserve Funds and Deposit Account’-

Transfer to National Disaster Response Fund.

5.5 Contributions made by any person or institution for the purpose of disaster management will also be credited to the NDRF. Modalities covering such contributions will be prescribed in due course.” 55

54. Paragraph 7.1 of the guidelines deals with

assessment of relief assistance from the NDRF.

Paragraph 7.1 is as follows:

“7.1 Upon a request made by a State not having adequate balance in its State Disaster Response Fund (SDRF), Ministry of Home Affairs or the Ministry of Agriculture, as the case may be, will assess whether a case for additional assistance from NDRF is made out under these guidelines and the approved items and norms of assistance under NDRF/SDRF. The following procedure will be adopted for making such assessment:

(i) The memorandum of the State Government will be examined to assess the likely requirement of funds as per items and norms of expenditure under SDRF/NDRF. If the preliminary examination reveals that there are adequate funds in SDRF with the State for providing relief as per norms, the State would be advised accordingly.

(ii) If the preliminary examination reveals that the State is in need of assistance, a Central Team will be deputed for making an on the spot assessment.

56 (iii) The report of the Central Team shall be examined by the National Executive Committee (NEC) constituted under section 8 of the DM Act, 2005.

The NEC will assess the extent of assistance and expenditure which can be funded from the NDRF, as per the norms of NDRF/SDRF, and make recommendations.

(iv) Based on the recommendations of NEC, a High Level Committee (HLC) will approve the quantum of immediate relief to be released from NDRF.”

55. The guidelines for administration of the NDRF

have been revised with effect from financial year

2015-16 which have been brought on record at page 154

of the writ petition. Paragraph 3.1 of the guidelines

is same as under guidelines for the financial year

2010-11. Paragraph 4.1 provides:

“4.1 The NDRF will be operated by the Government of India for the purpose of providing immediate relief to people affected by the above mentioned calamities which are assessed as being of ‘severe nature’, following the procedure described in para 7 of these guidelines. NDRF is classified in the Public Account in the 57

sub-section (b) 'Reserve Funds not bearing Interest' of the Government of India under the major head 8235- ‘General and other Reserve Funds' – 119- National Disaster Response Fund”.

56. Paragraph 5 deals with contribution to the NDRF

and there are some changes in the guidelines in

paragraph 5. Paragraphs 5.1 to 5.4 of the new

guidelines are as follows:

“5.1 The closing balance of the NDRF at the end of financial year 2014-15 shall be the opening balance of the NDRF in the year 2015-16.

5.2 Funds will be credited into the NDRF in accordance with the provisions of the section 46 (a) & (b) of Disaster Management Act, 2005.

5.3 The budget provision for transferring funds to the NDRF as mentioned in para 5.2 above shall be made in the Demand for grants no. 35- “Transfers to State and UT Governments” (under non-plan provision). Releases to State Governments will be made by the Ministry of Finance from this provision.

58 5.4 During the years 2015-20 transfers to the NDRF established in the Public Account of India will be made by operating the following heads of account: Major Head “2245-Relief on account of Natural Calamities – 80-

General-797-Transfers to Reserve Funds and Deposit Account’-Transfer to National Disaster Response Fund.”

57. The above is the scheme. As per paragraph 10 of

the new guidelines, 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.

58. We may now notice the PM CARES Fund. Petitioner

has brought on record certain details of PM CARES

Fund as Annexure-P13. The details about the PM CARES 59

Fund as brought on record as Annexure-P13 of the writ

petition are as follows:

“Keeping in mind the need for having a dedicated national fund with the primary 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 public charitable trust under the name of ‘Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund’ (PM CARES Fund)’ has been set up.

Click here to Donate Online.

Objectives :

• To undertake and support relief or assistance of any kind relating to a public health emergency or any other kind of emergency, calamity or distress, either man-made or natural, including the creation or upgradation of healthcare or pharmaceutical facilities, other necessary infrastructure, funding relevant research or any other type of support.

• To render financial assistance, provide grants of payments of money or take such other steps as may be deemed necessary by the Board of Trustees to the affected population.

• To undertake any other activity, which is not inconsistent with the above Objects.

60 Constitution of the Trust :

• Prime Minister is the ex-officio Chairman of the PM CARES Fund and Minister of Defence, Minister of Home Affairs and Minister of Finance, Government of India are ex-officio Trustees of the Fund.

• The Chairperson of the Board of Trustees (Prime Minister) shall have the power to nominate three trustees to the Board of Trustees who shall be eminent persons in the field of research, health, science, social work, law, public administration and philanthropy.

• Any person appointed a Trustee shall act in a pro bono capacity.

Other details :

• The fund consists entirely of voluntary contributions from individuals/ organizations and does not get any budgetary support. The fund will be utilised in meeting the objectives as stated above.

• Donations to PM CARES Fund would qualify for 80G benefits for 100% exemption under the Income Tax Act, 1961. Donations to PM CARES Fund will also qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the Companies Act, 2013

• PM CARES Fund has also got exemption under the FCRA and a separate account for receiving foreign donations has been opened. This enables PM CARES Fund to 61

accept donations and contributions from individuals and organizations based in foreign countries. This is consistent with respect to Prime Minister’s National Relief Fund (PMNRF). PMNRF has also received foreign contributions as a public trust since 2011.

CLICK HERE TO DONATE ONLINE”

59. From the above details, it is clear that 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.

62

60. After noticing constitution of NDRF as well as PM

CARES Fund now we may notice the contentions raised

by Shri Dave. The submission of Shri Dave is that the

earlier guidelines for administration of NDRF which

came into force with effect from financial year 2010-

11 have been modified by new guidelines with effect

from financial year 2015-16, and now it is not

possible for any person or institution to make

contribution to the NDRF. Shri Dave submits that

paragraph 5.5 of earlier guidelines has been deleted

to benefit the PM CARES Fund so that all

contributions by any person or institution should go

in the PM CARES Fund. Shri Dave submits that deletion

of paragraph 5.5 of earlier guidelines (at page 130)

in the new guidelines (at page 154-155) makes it

clear that now it is not possible for any person or

institution to make any contribution to NDRF.

61. There are two reasons for not accepting the above

submission. Firstly, paragraph 5.5 of earlier

guidelines which contemplated contributions by any 63

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. 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 above 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. The submission that after the

new guidelines, it is not possible for any person or

institution to make any contribution to the NDRF is,

thus, misconceived and incorrect. 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.

62. Secondly, 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.

63. Another limb of submission of Shri Dave is that

although the Government of India vide its letter

dated 14.03.2020 has decided to treat COVID-19 as a

notified disaster for the purpose of providing

assistance under SDRF but no similar notification has

been issued for the purpose of providing assistance

for COVID-19 under NDRF. The notification dated

14.03.2020 has been brought on record as Annexure-P10

of the writ petition which reads as follows: 65

“No.33-4/2020-NDM-I Government of India Ministry of Home Affairs (Disaster Management Division)

C-Wing, 3rd Floor, NDCC-II Jai Singh Road, New Delhi -110001

Dated 14.03.2020

To

The Chief Secretaries (All States)

Subject: Items and Norms of assistance from the State Disaster Response Fund (SDRF) in wake of COVID-19 Virus Outbreak

Sir/Madam

I am directed to refer this Ministry’s letter No.32-7/2014 dated 8th April, 2015 on the above mentioned subject.

2. The Central Government, keeping in view the spread of COVID-19 virus in India and the declaration of COVID-19 as pandemic by the World Health Organisation (WHO), by way of a special one time dispensation, has decided to treat it as a notified disaster for the purpose of providing assistance under SDRF. A list of items and norms of assistance for containment of COVID-19 Virus in India eligible from SDRF is annexed.

Yours faithfully, 66

(Sanjeev Kumar Jindal) Joint Secretary to Government of India Tel: 23438096

Copy to AS(UT), MHA for making similar provisions for utilization of UT Disaster Response Funds by the Union Territories.

CC for information: PS to HM/MOS(N)/HS”

64. After issuance of the above notification, the

Government of India, Ministry of Home Affairs

(Disaster Management Division) issued order of

03.04.2020 on the subject: “Advance release of

Central share from State Disaster Risk Management

Fund (SDRMF) for the year 2020-21”. By the said order

the Central Government has released first instalment

of Rs. 11,092/- crores out of Rs.22,184/- crores

which was the Central Share of SDRMF. All States

have been allocated different amounts for the purpose

of providing assistance under SDRMF. Annexure to the

said notification is at page 161, which indicates

that maximum grant allocated was to the State of

Maharashtra as Rs.1,611/- crores as first instalment 67

and minimum amount to State of Goa, i.e., Rs.6/-

crores by the Centre. The notification dated

14.03.2020 clearly permits providing the assistance

under SDRMF for COVID-19. In event, any State

expenditure is in excess of the balance in the

State’s SDRMF, the State is entitled for the release

of fund from NDRF as it is clear from new guidelines

filed at pages 154 to 158 of the writ petition. The

submission of the petitioner that NDRF cannot be used

for any assistance for COVID-19, thus, cannot be

accepted.

65. There is one more aspect of the matter which

needs to be noted. When the Centre is providing

financial assistance to the State to take measures to

contain COVID-19, as we have noticed above that by

order dated 03.04.2020 first instalment of Rs.

11,092/- crores which is the Central Share to the

SDRMF has been given and there is nothing on record

that any State has exceeded the expenditure in excess 68

of the balance in the State’s SDRMF, there is no

occasion of asking more fund by the State from NDRF.

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. We, thus, do not

find any substance in the submission of the

petitioner 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.

69

66. Further as observed above, 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.

67. The PM CARES Fund is a public charitable trust

and is not a Government fund. The charitable trusts

are public trusts. Black’s Law Dictionary, Tenth

Edition defines charitable trust in following words:

“charitable trust. A trust created to benefit a specific charity, specific charities, or the general public rather than a private individual or entity. Charitable trusts are often eligible for favorable tax treatment.”

68. The mere fact that administration of the Trust is

vested in trustees, i.e., a group of people, will not 70

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. In

paragraph 4, this Court laid down:

“4. The mere fact that the control in respect of the administration of the Trust vested in a group of people will not itself take away the public character of the Trust……………………………..”

69. 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.

71

70. Shri Dave during submissions has fairly submitted

that he is not questioning the bona fide of

constitution of PM CARES Fund. His submission is

that NDRF is audited by CAG but PM CARES Fund is not

audited by CAG rather by a private Chartered

Accountant. 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.

71. We may notice one more aspect with regard to

COVID-19. We have noticed above that guidelines which

were issued for constitution and administration of

NDRF and State’s SDRMF, the guidelines provided

utilization of fund for limited calamities, which did

not include any biological and public health

emergency. We have already noticed Clause 3.1 of 72

guidelines for administration of NDRF, which did not

provide for the calamities which cover the biological

and public health emergency. Thus, 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. At this need of the hour

no exception can be taken to the constitution of a

public charitable trust, namely, PM CARES Fund to 73

have necessary financial resources to meet the

emergent situation.

72. The NDRF and PM CARES Fund are two entirely

different funds with different object and purpose. In

view of the foregoing discussions, we answer question

Nos.3, 4 and 5 in following manner:

Answer 3. 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.

Answer 4. 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 74

institution in PM CARES Fund is voluntary and it

is open for any person or institution to make

contribution to the PM CARES Fund.

Answer 5. 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.

73. In view of the foregoing discussions, the prayer

‘a’ and ‘b’ made in the writ petition are refused.

With respect to prayer ‘c’, we make it clear (i) 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; (ii)

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 Act, 2005. 75

74. The prayer of the petitioner to direct all the

funds collected in the PM CARES Fund till date to be

transferred to the NDRF is refused.

75. Subject to clarification of law as made above,

the writ petition is dismissed.

......................J. ( ASHOK BHUSHAN )

......................J. ( R. SUBHASH REDDY )

......................J. ( M.R. SHAH ) New Delhi, August 18, 2020.