CENTRE FOR PUBLIC INTEREST LITIGATION versus UNION OF INDIA
[2020] 11 S.C.R. 425, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Ratio
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CENTRE FOR PUBLIC INTEREST LITIGATION
v.
UNION OF INDIA
(Writ Petition (Civil) No. 546 of 2020)
AUGUST 18, 2020
[ASHOK BHUSHAN, R. SUBHASH REDDY AND
M. R. SHAH, JJ. ]
Disaster Management Act, 2005 – s.11 – National Plan –
COVID-19 – Pandemic – A Public Interest Litigation filed in the
wake of COVID-19 pandemic seeking direction to the Union of
India to prepare, notify and implement a National Plan u/s. 11 r/w.
s.10 of the Act, 2005 to deal with current pandemic (COVID-19) –
Petitioner submitted that 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 pandemic and
has no mention of measures like lockdown, containment zones, social
distancing etc. –  Held: The first National Plan u/s. 11 was framed
in the year 2016, which was revised and the National Plan was
prepared and notified in November, 2019 – 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 – The
Biological and Public health emergencies has already been
contemplated in the National Plan, 2019, which as notified in table
1-1 under paragraph 1.13.1 specifically includes epidemics: Viral,
Bacterial, Parasitic,
Fungal and prior infections – Novel
Coronavirus is an epidemic which has become pandemic – Plan-
2019 is complemented by several plans, Standard Operating
Procedures (SOPs), manuals, Guidelines at all levels of the
Government – Further, the National Disaster Management Authority
had issued 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 – The Disaster Management
Act, 2005 contain ample powers and measures, which can be taken
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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 done from time to time – Containment
Plan for COVID-19 was also issued – There are no lack of guidelines,
SOPs and Plan to contain COVID-19 — Nodal Ministry has brought
on record updated containment plan for large outbreaks of COVID-
19 – Guidelines and orders have been issued from time to time to
regulate all measures to contain COVID-19 – Thus, there is no merit
in the submission of the petitioner that there is no sufficient plan to
deal with COVID-19 pandemic – National Plan, 2019 have 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.
Disaster Management Act, 2005 – s.12 – Guidelines for
Minimum Standards of Relief – COVID-19 – Pandemic – A public
interest litigation filed in wake of COVID-19 pandemic, seeking
direction to the Union of India to lay down minimum standards of
relief u/s. 12 of the Act, 2005 to be provided to persons affected
with COVID-19 – The petitioner pleaded 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 – It was further
pleaded that the Centre should come up with detailed guidelines
under s.12(ii) and (iii) of Act, 2005 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 was also submitted that there are
no guidelines providing for minimum standards of relief for COVID-
19 – Held: The respondent has brought on record the guidelines
which were in existence before declaration of COVID-19 pandemic
and it covers all statutory requirement as enumerated in s.12 – 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
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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 – Further, Government
of India has treated COVID-19 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
and other assistance – Therefore, Union of India is not obliged to
lay down minimum standard of relief u/s.12 and guidelines issued
u/s.12 providing for minimum standards of relief holds good for
pandemic COVID-19 also.
Disaster Management Act, 2005 – s. 46 – National Disaster
Response Fund – COVID-19 – Pandemic – Public Interest Litigation
– The submissions of the petitioner centre around National Disaster
Response Fund (NDRF) and PM CARES Fund – It was submitted
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 and it was further submitted that
deletion of paragraph 5.5 of earlier guidelines makes it clear that
it is not possible for any person or institution to make any
contribution to NDRF – It was contended that paragraph 5.5 of the
earlier guidelines was
deleted to benefit the PM CARES Fund –
Held: 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 s. 46(1)(a)
& (b) of the Disaster Management Act, 2005 – The above guideline
5.2 specifically referred to s. 46(1)(a) & (b) and s. 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 to NDRF
– Thus, the submission that it is not possible for any person or
institution to make any contribution to the NDRF is incorrect – So,
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
s. 46(1)(b) of the Act, 2005 – Further, 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.
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Disaster Management Act, 2005 – s. 46 – COVID-19 –
Pandemic – NDRF and PM CARES Fund – Public Interest Litigation
– 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, a fund
was created, namely, PM CARES Fund – It was contended that all
the contributions/ grants from individuals/institutions to be credited
in NDRF and not to PM CARES Fund and all the funds collected in
PM CARES Fund till date should be directed to be transferred to
NDRF – Held: As per the new guidelines, 2015-16 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 SDRMF – The Centre has released first
intalment of Rs.11,092/- crores out of 22,184/- crores which was
the Central share of SDRMF and there is nothing on record that
any State has exceeded the expenditure in excess of the balance in
the State’s SDMRF, there is no occasion of asking more fund by the
State from NDRF – Whereas, the PM CARES Fund has been
constituted as a public charitable trust in the year 2020 – Under
the guidelines which were in existence with effect from financial
year 2015-16, neither NDRF nor SDRMF covered the bioligical
and public health emergencies – No contribution by any person or
institution in the
NDRF could have been made prior to the notification
dated 14.03.2002, which notified COVID-19 as disaster – The
outbreak of COVID-19 required immediate enhancement in the
infrastructure of medical health and creation of fund to contain
COVID-19 – PM CARES Fund was constituted to have necessary
financial resources to meet the emergent situation – The NDRF and
PM CARES Fund are two entirely different funds with different object
and purpose – The funds collected in the PM CARES are funds of a
public charitable trust and there is no occasion for issuing any
direction to transfer the said funds to the NDRF.
Dismissing the writ petition, the Court
HELD: 1. I) 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?
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1.1 The 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.
[Para 36][454-C]
1.2 Thus, the National Disaster Management Authority was
well aware of the epidemics and had issued 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.
[Para 38][454-H; 455-A]
1.3 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, 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). [Para 39][455-B-D]
1.4 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,
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guidelines and measures, there is no lack or dearth of plans and
procedures to deal with COVID-19. [Para 40][455-E]
1.5  This Court does 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 India to prepare a fresh National Plan
for COVID-19. Thus, the Union of India is not obliged to prepare,
notify and implement a fresh National Disaster Management Plan
for COVID-19. [Para 42][456-A-B]
2. 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?
2.1 The guidelines brought on record 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][457-D-E]
2.2 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 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
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be provided to persons infected with COVID-19 is misconceived.
[Para 46][457-F-G]
3. (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?
3.1 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.
[Para 49][458-E]
3.2 The guidelines for administration of the NDRF have
been revised with effect from financial year 2015-16 which have
been brought on record. 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. [Paras 55 and 57][461-D-E; 462-D-E]
3.3 The PM CARES Fund has been constituted as a public
charitable trust. After outbreak of pandemic COVID-19, need of
having a dedicated national fund with objective of dealing with
any kind of emergency or distress situation, like posed by the
COVID-19 pandemic, and to provide relief to the affected, a fund
was created by constituting a trust with Prime Minister as an
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][464-A-C]
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3.4 Firstly, paragraph 5.5 of earlier guidelines which
contemplated 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. 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 2015-16
any person or institution can still make contribution to the NDRF.
[Para 61][464-F-H; 465-A]
3.5 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. [Para 62][465-B]
3.6 After issuance of the 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 and minimum amount to State of Goa, i.e.,
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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. The
submission of the petitioner that NDRF cannot be used for any
assistance for COVID-19, thus, cannot be accepted. 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 this Court has 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 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. This Court thus, does 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. [Paras 64 and 65][466-
F-H; 467-A-E]
3.7 The 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. This Court
has already noticed Clause 3.1 of 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
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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 have necessary financial resources to meet the
emergent situation. [Para 71][468-F-H; 469-A-B]
3.8 The NDRF and PM CARES Fund are two entirely
different funds with different object and purpose. In view of the
foregoing discussions, the question Nos.3, 4 and 5 are answered
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 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. [Para 72][469-C-F]
Swaraj Abhiyan v. Union of India & Ors., (2016) 7
SCC 498 – referred to.
Gaurav Kumar Bansal v. Union of India and Ors.,
(2017) 6 SCC 730; Mulla Gulam Ali & Safiabai D. Trust
v. Deelip Kumar & Co., (2003) 11 SCC 772 – relied
on.
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Case Law Reference
(2016) 7 SCC 498
referred to
Para 8
(2017) 6 SCC 730
relied on
Para 8
(2003) 11 SCC 772
relied on
Para 68
CIVIL ORIGINAL JURISDICTION:  Writ Petition (Civil) No.
546 of 2020.
[Under Article 32 of The Constitution of India]
Tushar Mehta, SG, K.M. Nataraj, Ms. Aishwarya Bhati, Sanjay
Jain, ASGs, Amit Kumar, AG, (Meghalaya), Anil Grover, AAG, (Haryana),
Jayant Muthuraj, AAG, (Tamil Nadu), Tapesh Kumar Singh, AAG,
(Jharkhand), Saurabh Mishra, AAG, (M.P.), Colin Gonsalves, C.P.
Sudhakara Prasad, Dushyant Dave, Ranjit Kumar, Dr. Manish Singhvi,
Kapil Sibal, P. Chidambaram, Ms. Gayatri Singh, Gopal Sankarnarayan,
Jaideep Gutpa, Sr. Advs., Nikhil Goel, Naveen Goel, Dushyant Sarna,
Vinay Mathew, Abhimanue Shrestha, Arun Pedneker, Rahul Chitnis, Sachin
Patil, Rajat Nair, Kanu Agrawal, Saurab Mishra, Gurmeet Singh Makker,
B. V. Balaram Das, Ejaz Maqbool, Ms. Uttara Babbar, M. Shoeb Alam,
S. Udaya Kumar Sagar, Ms. Swati Bhardeaj, Ms. Gunjan Singh, Siddharth
Seem, Ms. Anupradha Singh, Satya Mitra, Jishnu M.L., Ms. Priyanka
Prakash, Ms. Beena Prakash, G. Prakash, Prashant Bhushan,
Dr. Abhishek Atrey, Shadman Ali, Ms. Vidyottma Jha, Ms. Ambika Atrey,
Chirag M. Shroff, Ms. Sanjana Nangia, Ms. Abhilasha Bharati, Avijit
Mani Tripathi, Abhikalp P. Singh, Shaurya Sahay, Ms. Tarini K. Nayak,
Abhimanue Shrestha, Ms. Deepanwita Priyanka, Sumeer Sodhi, Ashish
Tiwari, Ms. Noopur Singhal, Rahul Khurana, Sanjay Kumar Visen,
Pranav Sachdeva, Manish Kumar,
Pukhrambam Ramesh Kumar,
Ms. Anupama Ngangom, Karun Sharma, Shresth Sharma, Suhaan
Mukerji, Vishal Prasad, Amit Verma, M/S. Plr Chambers And Co.,
Raghvendra Kumar, Narendra Kumar, V. G. Pragasam, S. Prabu
Ramasubramanian, Karan Bharihoke, Siddhant Sharma, Shubhranshu
Padhi, Abhimanyu Tewari, Biju P. Raman, Raj Bahadur Yadav, Ms. Shashi
Juneja, Ms. Pinky Behera, Abhinav Mukerji, Ms. Bihu Sharma,
Ms. Pratishtha Vij, Mohit Paul, Rushab Aggarwal, Ms. Sunaina Phul,
K.V. Jagdishvaran, Ms. G. Indira, M. Yogesh Kanna, Shuvodeep Roy,
Rituraj Biswas, Sibo Sankar Mishra, Sandeep Kumar Jha, Ms. K. Enatoli
Sema, Siddhesh Kotwal, Ms. Arshiya Ghose, Ms. Astha Sharma, Arjun
Garg, Ms. Rati Tandon, Deepak Prakash, Nachiketa Vajpayee,
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Ms. Divyangna Malik, Ms. Rashmi Bansal, Raj Kishor Choudhary,
Ms. Nupur Kumar, Ms. Ronita Bhattacharya, Shadan Farasat, Bharat
Gupta, Sunil Fernandes, Amit Bhandari, Muhammad Khan, Avishkar
Singhvi, Varun Chopra, Omar Hoda, Prastut Dalvi, Ms. Aishwarya
Mohapatra, Gurtejpal Singh, Ms. Mithu Jain, Arnav Vidyarthi, Vivek
Sharma, Nitin Mishra, Ms. Mitali Gupta,  Advs. for the appearing parties.
Alakh Alok Srivastava, Ms. Nanita Sharma, Mukesh Kumar,
applicant-in-persons.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. 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). This was subsequently identified as
a new virus in January, 2020 and over the following months, the number
of cases continued to rise but were not 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 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
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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;
(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 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.”
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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 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 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,
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(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: -
“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
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year 2016 as was 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 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 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
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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;
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
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
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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 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 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 cannot
contain step by step instructions or specific instructions for the day to
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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. 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 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.
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16. Shri Dushyant Dave, learned senior counsel appearing for the
petitioner referring to the pleadings of the petitioner made in the writ
petition 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 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 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
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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 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.
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.
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: -
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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 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 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
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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
organizations in the field of disaster management to be approved
by the National Authority.
(3)
The National Plan shall include –
(a) measures to be taken for the prevention of
disasters, or the mitigation of their effects;
(b) measures to be taken for the integration of
mitigation measures in the development plans;
(c) measures to be taken for preparedness and
capacity building to effectively respond to any
threatening disaster situations or disaster;
(d) roles and responsibilities of different Ministries
or Departments of the Government of India in
respect of measures specified in clauses (a), (b) and
(c).
(4) The National Plan shall be reviewed and updated
annually.
(5) Appropriate provisions shall be made by the Central
Government for financing the measures to be carried out under
the National Plan.
(6) Copies of the National Plan referred to in sub-sections
(2) and (4) shall be made available to the Ministries or Departments
of the
Government of India and such Ministries or Departments
shall draw up their own plans in accordance with National Plan.”
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
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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 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 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,
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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 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 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: -
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“Table 1-1: Categories of Natural Hazards
Family 
Main Event 
Short Description/ 
Secondary Disaster 
1
Geophysical 
2
Hydrological 
3
Meteorological
4
Climatological
5 
Biological 
Exposure 
to 
germs and toxic 
substances 

Epidemics: 
Viral, bacterial 
parasitic, fungal, 
or 
prion 
infections 

Insect 
infestations 

Animal 
stampedes
28. Table 1-3, provides for ‘Nodal Ministry for Management/
Mitigation of Different Disasters’ with regard to Biological Emergencies,
Nodal Ministry is 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...”
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29. Paragraphs 6 and 7 deals with “Building Disaster Resilience -
Responsibility Framework, Part A and B”. Dealing with Biological and
Public Health Emergencies 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
B iolo gic a l &  P u b lic  H e a lth  E m e r gen c ies (B PH E ) 
S u b -T h e m a tic  
A r e a fo r  DR R  
C en tr a l/Sta t e A g en cie s  a n d  th e ir  R e sp o n sib ilitie s
C en tr e #
Res pons ib ilit y 
-
Cen tr e
S tat e #
R esp o nsib ilit y -
S ta te
1 .
O bs er v ati on  
N e tw orks , 
In fo rm a tio n 
S ys te m s, 
M on itor ing , 
R e se a rc h, 
F ore ca stin g, 
E arly  
W a rnin g 
and  
Zo ni ng/ M a p pin g
M H F W *
(N C D C ), 
M A F W , 
M H A , 
M O D , 
M O E S , 
M O E F C C , 
M O R , 
M L B E , 
M E IT Y , 
N D M A  
Rec ur rin g /
Reg ula r(R R )
 S u pp ort 
f or   
tr a inin g 
 E xte n d te c h nic al 
su pp ort
M e d iu m  
T e r m ( T 2 )
 E sta b lish m e nt  
o f  
E a rly  
W a rn ing  
S y
stem  
 S t re n gth en ing  
ID S P  an d e a rly  
w ar nin g 
s yste m s 
a t 
re gio na l le ve ls  
 E p ide m i olo gic a l 
d ise a se  
m app ing  
 H ea lth  f a c ilitie s 
m app ing  
H F W D *, 
D M D $, 
S D M A , 
R D , 
D R D , 
U D D , 
D W S D, 
E D D , P D , 
E F D , 
A H D , 
W C D , 
P R I/U L B , 
S L R T I, 
D D M A  
R ec ur rin g /
R e gu la r (R R )
M a int ain ing  
p re v e ntiv e  
m ea s ure s a s p e r 
n orm s  
S h or t  T e r m ( T 1)
S tre n gthen ing  
in te gr ate d hea lth 
s urve illa n ce  
s yste m s 
M ed i u m  
T e r m ( T 2 )
 E sta bl ishin g 
a nd  
m a in ta in 
c om m u nit y-
b as e d ne tw or k 
for 
sh a rin g 
a ler ts 
 S tre ng the n ing  
IDS P  
L o n g 
T e r m ( T 3 )
S ta te s  
s ho uld , 
m od ify  or  a da pt 
IM D ’s 
w a r nin g 
s yste m  a c c or din g 
to  
th r es ho lds 
ap plic a bl e 
in 
ea c h sta te  
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31. The other items apart from item (1) as noticed above in
paragraph 7, which are relevant is as follows:-
Biological & Public Health Emergencies (BPHE) 
Sub-Thematic 
Area for DRR 
Central/State Agencies and their Responsibilities
Centre#
Responsibility - Centre
State#
Responsibility -State
2.
Hazard 
Risk 
Vulnerability 
and 
Capacity 
Assessment 
(HRVCA)
MHFW*, 
MAFW*, MHA, 
MOD, MOES, 
MOEFCC, 
MSJE, NDMA
Recurring/ 
Regular (RR)
• 
Promote 
studies, 
documentation 
and 
research  
• 
Provide 
Training 
& 
Technical support  
• Studies on vulnerabilities 
and 
capacities 
covering 
social, 
physical, 
economic, 
ecological, 
gender, 
social inclusion and 
equity 
aspects
Short-Term (T1)
Develop guidelines 
HFWD, 
DMD$, 
SDMA,      
DRD, 
UDD, 
DWSD, 
EFD, 
AHD, 
WCD, 
DSJE, 
PRI, 
ULB, 
SLRTI,  
DDMA
Recurring/ Regular 
(RR)

Updating HRVCA 

Identifying 
the 
vulnerable 
population/ 
communities/ 
settlements  

Identification 
of 
groups 
requiring 
special attention 

Conduct 
audit 
of 
equipment and hu 
man 
resource 
requirements 
Short term(T1)
Constitute/ strengthen the 
mechanisms 
for 
consultation with experts 
and stakeholders
3 
Dissemination 
of 
warnings, data & 
information 
MHFW, MHA, 
MOD, MOES, 
MAFW, 
MOEFCC, 
NDMA 
Recurring/ Regular 
(RR)

Support for organising 
training  

Extend technical 
support 
HFWD*, 
DMD$, 
SDMA, 
DRD, 
UDD, 
DWSD, 
EDD, 
PD, EFD, 
AHD, 
WCD, 
PRI, 
ULB,
SLRTI, 
DDMA 
Short Term (T1)

Create 
awareness 
preventive measures 

Extensive 
IEC 
campaigns to create 
awareness 
through 
print, electronic and 
social media  
Medium Term (T2)
Specific messages for 
highly vulnerable groups 
such as elderly, young 
children, 
outdoor 
workers 
and 
slum 
residents
4 
Disaster 
Data 
Collection 
and 
Management 
MHA* , MOSPI, 
all ministries/ 
depts. 
Recurring/ 
Regular (RR) 
Systematic data 
management of data on 
disaster damage and loss 
assessments 
Short Term (T1)
Disaster 
Damage 
and 
Losses 2005-2015 baseline 
DMD$, 
SDMA, 
all depts. 
Recurring/ Regular 
(RR)
Systematic data 
management of data on 
disaster damage and loss 
assessments 
Short Term (T1)
Disaster Damage and 
Losses 2005- 2015 
baseline
Notes: (#) Every ministry, department or agency of the government
– central and state – not specifically mentioned will also have
both direct and indirect supporting role depending on the disaster,
location and context. (*) The ministry, department or agency with
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this symbol has or is deemed to have a nodal or lead role, while
others mentioned have a direct or explicit supporting role. ($) 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, 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;
(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
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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 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 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 guidelines in the year 2008 itself
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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, 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.
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.”
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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 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;
(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
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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 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 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 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
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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 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
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.
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(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 (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 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
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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 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.”
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
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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.
(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
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.
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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.
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
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,
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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.
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 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.
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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.
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 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
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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 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:
“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
CENTRE FOR PUBLIC INTEREST LITIGATION v. UNION OF
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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,
(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 and minimum amount to State of Goa, i.e., Rs.6/- crores
by the Centre. The notification dated 14.03.2020 clearly permits providing
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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 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.
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.”
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68. 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. 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.
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
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
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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 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 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.
CENTRE FOR PUBLIC INTEREST LITIGATION v. UNION OF
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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.
Ankit Gyan
Writ Petition dismissed.