Case: CENTRE FOR PUBLIC INTEREST LITIGATION Vs. UNION OF INDIA

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 month2. 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 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: -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 REASONSThe 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.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 later5. 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, (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.. The Sendai declaration dealing with priorities for action emphasized following in paragraph 33(a):-33(a) To prepare or review and periodically update disaster preparedness and contingency policies, plans and programmes with the involvement of the relevant institutions, considering climate change scenarios and their impact on disaster risk, and facilitating, as appropriate, the participation of all sectors and relevant stakeholders;8. Although Section 11 of Act, 2005 contemplated preparation of a National Plan, however, the National Plan was not prepared till the year 2016 as was 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.

Court's reasoning:
38. 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.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.. 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-19.34. The object and purpose of preparing a National Plan is to cope up and tackle with all conceivable disasters which the country may face. When the measures have to be taken for preparedness and capacity building to effectively respond to any threatening disaster situation, the section does not contemplate preparation of Plan after a disaster has occurred.35. National Plan and guidelines as contemplated by the statute for Disaster Management is by its very nature prior to the occurrence of any disaster and as 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.Section 11 of the Act provides that there shall be a plan for Disaster Management for the whole of the Country.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 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.. 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 States 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, 2005.59. 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.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 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.The notification dated 14.03.2020 has been brought on record as Annexure-P10 of the writ petition64. 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 the assistance under SDRMF for COVID-19. In event, any State expenditure is in excess of the balance in the States 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.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 States 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.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.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.We have noticed above that guidelines which were issued for constitution and administration of NDRF and States 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 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.