The NDRF and PM CARES Fund are two entirelydifferent funds with different object and purpose

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.546 OF 2020
CENTRE FOR PUBLIC
INTEREST LITIGATION …PETITIONER(S)
VERSUS
UNION OF INDIA …RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
From the beginning of this year, 2020, the world
including our country is in the grip of a pandemic
known as Novel Coronavirus (COVID-19). On
31.12.2019, a cluster of cases of pneumonia of
unknown cause in the city of Wuhan, Hubei Province in
China was reported to the World Health Organisation
(WHO). 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
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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.

  1. The world is familiar with several kinds of
    disasters from time immemorial. Every country has
    faced one or other disaster in recent memory.
    Disasters disturb lives, societies and livelihood
    around the world. The impact of disaster is to
    strike hard earned economy, development and material
    gains. Many of the destructive hazards are natural
    in origin and some man made also. The whole world
    having faced adverse effect of different kinds of
    disasters is now well aware of its ill effect and
    steps internationally as well as nationally are being
    taken for last several decades to combat different
    3
    kinds of disasters. U.N. General Assembly
    recognizing the importance of reducing the impact of
    natural disaster for all people including developing
    countries designated 1990 as the international decade
    of natural disaster reduction. The International
    Strategy for Disaster Reduction (UNISDR) was
    established following IDNDR of the 1990s. The UN/GA
    convened the second World Conference on Disaster Risk
    Reduction (DRR) in Kobe, Hyogo, Japan 2005, which
    concluded the review of the Yokohama Strategy and its
    Plan of Action and the adoption of the Hyogo
    Framework for Action 2005–2015: Building the
    Resilience of Nations and Communities to Disasters
    (HFA) (UNISDR 2005) by 168 countries. The HFA
    outlined five priorities for action:
    “(1) Ensure that DRR is a national and a
    local priority with a strong
    institutional basis for
    implementation;
    (2) Identify, assess, and monitor disaster
    risks and enhance early warning;
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    (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.”
  2. On 23.12.2005, both the Houses of Indian Parliament
    passed a Disaster Management Bill. The Introduction
    and the Statement of Objects and Reasons of the Bill
    mentions: –
    “INTRODUCTION
    For prevention and mitigation effects
    of disasters and for undertaking a
    holistic, coordinated and prompt response
    to any disaster situation it has been
    decided by the Government to enact a law
    on disaster management to provide for
    requisite institutional mechanisms for
    drawing up and monitoring the
    implementation of the disaster management
    plans, ensuring measures by various wings
    of Government. To achieve this objective
    the Disaster Management Bill was
    introduced in the Parliament.
    STATEMENT OF OBJECTS AND REASONS
    The Government have decided to enact a
    law on disaster management to provide for
    requisite institutional mechanisms for
    drawing up and monitoring the
    5
    implementation of the disaster management
    plans, ensuring measures by various wings
    of Government for prevention and
    mitigating effects of disasters and for
    undertaking a holistic, coordinated and
    prompt response to any disaster
    situation.”
  3. 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.
  4. In accord with Disaster Management Act, 2005, Union
    Cabinet approved a “National Policy on Disaster
    6
    Management, 2009”. Paragraph 1.1.1, 1.2.1 and 1.3.1
    of the policy reads as under: –
    “1.1.1 Disasters disrupt progress and
    destroy the hard-earned fruits of
    painstaking developmental efforts, often
    pushing nations, in quest for progress,
    back by several decades. Thus, efficient
    management of disasters, rather than mere
    response to their occurrence, has in
    recent times, received increased attention
    both within India and abroad. This is as
    much a result of the recognition of the
    increasing frequency and intensity of
    disasters, as it is an acknowledgement
    that good governance in a caring and
    civilised society, needs to deal
    effectively with the devastating impact of
    disasters.
    1.2.1 India is vulnerable, in varying
    degrees, to a large number of natural as
    well as man-made disasters. 58.6 per cent
    of the landmass is prone to earthquakes of
    moderate to very high intensity; over 40
    million hectares (12 per cent of land) is
    prone to floods and river erosion; of the
    7,516 km long coastline, close to 5,700 km
    is prone to cyclones and tsunamis; 68 per
    cent of the cultivable area is vulnerable
    to drought and hilly areas are at risk
    from landslides and avalanches.
    Vulnerability to disasters/emergencies of
    Chemical, Biological, Radiological and
    Nuclear (CBRN) origin also exists.
    Heightened vulnerabilities to disaster
    risks can be related to expanding
    population, urbanisation and
    industrialisation, development within
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    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 reliefcentric response to a proactive
    prevention, mitigation and preparednessdriven 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.
  5. 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: –
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    “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.”
  6. 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;”
  7. 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
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    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.
  8. 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
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    except Andhra Pradesh and Telangana have
    prepared a State Disaster Management Plan
    which is very much in place.
  9. 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.”
  10. 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.
  11. 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
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    minimum standards of relief under Section 12 of the
    Act, 2005 to be provided to persons affected with
    COVID-19. Petitioners have also sought for
    directions to utilize National Disaster Response Fund
    (NDRF) for the purposes of providing assistance in
    the fight against COVID-19 and all the
    contributions/grants from individuals/institutions be
    credited in NDRF and not to PM CARES Fund and all
    funds collected in PM CARES Fund till date should be
    directed to be transferred to NDRF. It is useful to
    note the specific prayers (a) to (c) made in the writ
    petition: –
    “a. Issue a writ, order or direction to
    the Union of India to prepare, notify
    and implement a National Plan under
    Section 11 read with Section 10 of the
    Disaster Management Act, 2005 to deal
    with the ongoing COVID-19 pandemic;
    b. Issue a writ, order or direction to
    the Union of India to lay down minimum
    standards of relief, under Section 12
    of the Disaster Management Act, 2005,
    to be provided to persons affected by
    the COVID-19 virus, as well as by the
    resultant national lockdown;
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    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;”
  12. 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.
  13. 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
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    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 welldrawn National Plan to deal with instant pandemic and
    the same need to be prepared after due consultation
    with the State Government and experts. Petitioner
    further pleads that Centre should come up with
    detailed guidelines recommending the minimum
    standards of relief to be provided in the relief
    camps in relation to shelter, food, drinking water,
    medical cover and sanitation, in absence of which,
    shelter homes and relief camps are susceptible of
    becoming hotbeds for the spread of COVID-19
    infection. Petitioner pleads that Centre should come
    up with detailed guidelines under Section 12(ii) and
    (iii) of the Act, 2005 recommending special
    provisions to be made for widows and orphans and ex
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    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.
  14. 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
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    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.
  15. 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 R1 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
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    cannot contain step by step instructions or specific
    instructions for the day to day management by
    Government agencies in the situation of any
    particular and unforeseen disaster. National Plan is
    not a document that contains the microscopic details
    as to the day to day management of the issues arising
    out of different disasters. National Disaster
    Management Authority has issued various orders from
    time to time to take effective measures found
    required at the relevant point of time to contain the
    spread of COVID-19 in the country. The Chairperson
    of National Executive Committee has issued several
    guidelines from time to time. National Disaster
    Management Authority has, in order to create
    preparedness with regard to any contingent biological
    disaster, has framed the “National Disaster
    Management Guidelines Management of Biological
    Disasters”. National Disaster Management Authority
    has framed broad template for State level and
    District level for contingency plan for COVID-19.
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    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 COVID19 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
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    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.
  16. 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.
  17. Shri Dushyant Dave, learned senior counsel
    appearing for the petitioner referring to the
    pleadings of the petitioner made in the writ petition
    19
    contends that Centre was obliged to prepare a
    National Plan for Disaster Management specifically
    for COVID-19. Shri Dave does not dispute that
    National Plan under Section 11 has been framed in
    November, 2019 but he submits that said Plan is
    neither comprehensive nor covers management of
    pandemic, i.e., COVID-19. Shri Dave submits that
    power given in a Statute is to be exercised in the
    same manner. Shri Dave further submits that there is
    a serious problem in implementing the National Plan,
  18. Shri Dave has taken us to certain portion of
    Plan of November, 2019, which has been filed as
    Annexure – P-2 to the writ petition. Shri Dave
    submits that only paragraph 7.15 deals with
    biological and public health emergencies but Plan
    does not contemplate giving any financial relief.
    Shri Dave submits that unless there is a National
    Plan for COVID-19, effective measures cannot be taken
    to contain COVID-19. Referring to Section 46 of the
    Act, 2005, Shri Dave submits that NDRF having been
    20
    constituted by Central Government, all amount given
    by individuals and organisations for disaster should
    have been credited in NDRF. He submits that PM CARES
    Fund should not have been constituted when NDRF is
    already in place to take care of disasters. Shri
    Dave submits that there is no provision in 2019 Plan
    to give fund to NDRF. Referring to Operational
    Guidelines for Constitution and Administration of the
    National Disaster Response Fund at page 129 of the
    writ petition, Shri Dave submits that paragraph 5.5
    provides that contribution made by the persons or
    institutions for the purpose of disaster management
    to be credited in the NDRF, which clause 5.5 has been
    omitted in the subsequent Operational Guidelines for
    Constitution and Administration of the National
    Disaster Response Fund filed at page 154, which is
    recent guidelines. By deletion of clause 5.5 now
    contribution by any person or institution for the
    purpose of disaster management to the NDRF is not
    permissible. Shri Dave submits that petitioners have
    21
    no reason to doubt the bonafide of PM CARES Fund but
    by creating PM CARES Fund the NDRF is being
    circumvented. What cannot be done directly cannot be
    done indirectly. Although, NDRF is audited by CAG,
    the PM CARES Fund is audited by only private
    auditors.
  19. Shri Tushar Mehta, learned Solicitor General
    refuting the submissions of the counsel for the
    petitioners submits that reliefs (i) and (ii) made in
    the writ petition has become infructuous since
    National Plan has already been prepared under Section
    11, which has been referred to in the counter
    affidavit and relevant extract of the Plan has
    already been brought on record as Annexure R-1 along
    with counter affidavit. He submits that insofar as
    the guidelines for minimum standards of reliefs are
    concerned, there are guidelines in existence, which
    has been brought on record by the counter affidavit,
    which covers all disasters including COVID-19. Shri
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    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.
  20. Shri Tushar Mehta submits that a National
    Disaster Response Fund has been created as stipulated
    under Section 46 of Act, 2005, which consist of fund
    in the form of budgetary provisions made by the
    Central Government in National Disaster Response
    Fund. He submits that the existence of National
    Disaster Response Fund, which is a statutory fund,
    neither prevents creation of any public charitable
    trust receiving voluntary donation nor can remotely
    mean that the amount received in all such voluntary
    funds should go in the statutory fund created under
    Section 46. National Disaster Response Fund and PM
    CARES Fund being distinct and separate, there is no
    occasion for any direction to transfer the amount of
    PM CARES Fund to the National Disaster Response Fund.
    23
  21. We have heard the learned counsel for the parties
    and perused the record. Applications for intervention
    are rejected.
  22. 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.
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  23. From the submissions of the learned counsel for
    the parties and the pleadings on record, following
    questions arise for consideration in this writ
    petition: –
    I) Whether the Union of India under Section 11 of
    Act, 2005, is obliged to prepare, notify and
    implement a National Disaster Management Plan
    specifically for pandemic COVID-19
    irrespective of National Disaster Management
    Plan notified in November, 2019?
    II) Whether the Union of India is obliged to lay
    down the minimum standards of relief under
    Section 12 of Act, 2005, for COVID-19
    irrespective of earlier guidelines issued
    under Section 12 of the Act, 2005 laying down
    the minimum standards of relief?
    III) Whether Union of India is obliged to utilise
    National Disaster Response Fund created under
    25
    Section 46 of the Act for the purpose of
    providing assistance in the fight of COVID-19?
    IV) Whether all the contributions/grants from
    individuals and institutions should be
    credited to the NDRF in terms of Section 46(1)
    (b) of the Act rather than to PM CARES Fund?
    V) Whether all the funds collected in the PM CARES
    Fund till date be directed to be transferred to
    the NDRF?
    QUESTION NO.I
    I) Whether the Union of India under Section 11 of
    Act, 2005, is obliged to prepare, notify and
    implement a National Disaster Management Plan
    specifically for pandemic COVID-19 irrespective
    of National Disaster Management Plan notified in
    November, 2019?
  24. The Act, 2005, has been enacted for the effective
    management of Disasters and for matters connected
    therewith or incidental thereto. Section 3 of the
    Act constitutes National Disaster Management
    Authority with the Prime Minister of India as the
    26
    Chairperson, ex-officio. Section 6 enumerates the
    powers and functions of National Authority. As per
    Section 6 sub-Section (2)(b), National Disaster
    Management Authority (hereinafter referred to as
    National Authority) is to approve the National Plan.
    Under Section 7, the National Authority may
    constitute an advisory Committee consisting of
    experts in the field of Disaster Management to make
    recommendations on different aspects of Disaster
    Management. Under Section 8, the Central Government
    is to constitute a National Executive Committee to
    assist the National Authority in the performance of
    its functions under the Act. Section 11 of the Act
    deals with National Plan, which provision is to the
    following effect: –
    “11. National Plan –(1) There shall be
    drawn up a plan for disaster management
    for the whole of the country to be called
    the National Plan.
    (2) The National Plan shall be
    prepared by the National Executive
    Committee having regard to the National
    Policy and in consultation with the State
    Governments and expert bodies or
    27
    organizations in the field of disaster
    management to be approved by the National
    Authority.
    (3) The National Plan shall include –
    (a) measures to be taken for
    the prevention of disasters,
    or the mitigation of their
    effects;
    (b) measures to be taken for
    the integration of mitigation
    measures in the development
    plans;
    (c) measures to be taken for
    preparedness and capacity
    building to effectively
    respond to any threatening
    disaster situations or
    disaster;
    (d) roles and responsibilities
    of different Ministries or
    Departments of the Government
    of India in respect of
    measures specified in clauses
    (a), (b) and (c).
    (4) The National Plan shall be
    reviewed and updated annually.
    (5) Appropriate provisions shall be
    made by the Central Government for
    financing the measures to be carried out
    under the National Plan.
    (6) Copies of the National Plan
    referred to in sub-sections (2) and (4)
    shall be made available to the Ministries
    or Departments of the Government of India
    28
    and such Ministries or Departments shall
    draw up their own plans in accordance with
    National Plan.”
  25. As noted above, the first National Plan under
    Section 11 was framed in the year 2016, which was
    revised and the National Plan was prepared and
    notified in November, 2019. Extract of National
    Disaster Management Plan of November, 2019 has been
    brought on record both by the petitioner as
    Annexure-P2 to the writ petition as well as by the
    respondent as Annexure-R1 to the preliminary counter
    affidavit.
  26. We may notice certain relevant portions of the
    Plan, 2019 to answer the question which is up for
    consideration. The Plan, 2019 under heading
    ‘Executive Summary’ states: –
    “…The National Disaster Management
    Plan (NDMP) provides a framework and
    direction to the government agencies for
    all phases of disaster management cycle.
    The NDMP is a “dynamic document” in the
    sense that it will be periodically
    improved keeping up with the emerging
    global best practices and knowledge base
    29
    in disaster management. It is in
    accordance with the provisions of the DM
    Act, 2005, the guidance given in the
    National Policy on Disaster Management
    (NPDM) 2009, and the established national
    practices…”
  27. In the Executive summary itself, while noticing
    the changes introduced, the Plan states that new
    sections have been added relating to several hazards
    including “Biological and Public Health
    Emergencies”. The Plan, 2019 provides a framework
    and directions to the Government Agencies for all
    phases of Disaster Management. The Plan is a dynamic
    document in the sense that it was to be periodically
    improved, keeping up with the best practices and
    knowledge based in Disaster Management. The Plan
    provides a framework covering all aspects of
    Disaster Management. It covers Disaster Risk
    Reduction, mitigation, preparedness, response,
    recovery and building back better. It recognizes
    that effective Disaster Management necessitates a
    comprehensive framework encompassing multiple
    30
    hazards. Paragraph 1.4 of the Plan under the heading
    ‘Legal Mandate’ states: –
    “1.4. Legal Mandate
    Section 11 of the DM Act 2005 mandates
    that there shall be a National Disaster
    Management Plan (NDMP) for the whole of
    India. The NDMP complies with the National
    Policy on Disaster Management (NPDM) of
    2009 and conforms to the provisions of the
    DM Act making it mandatory for the various
    central ministries and departments to have
    adequate DM plans. While the NDMP will
    pertain to the disaster management for the
    whole of the country, the hazard-specific
    nodal ministries and departments notified
    by the Government of India will prepare
    detailed DM plans specific to the disaster
    assigned. As per Section 37 of the DM Act,
    every ministry and department of the
    Government of India, be it hazard-specific
    nodal ministries or not, shall prepare
    comprehensive DM plans detailing how each
    of them will contribute to the national
    efforts in the domains of disaster
    prevention, preparedness, response, and
    recovery.
    As per the mandate of the DM Act, the
    NDMP assigns specific and general
    responsibilities to all ministries and
    departments for disaster management. The
    DM Act enjoins the NDMP to assign
    necessary responsibilities to various
    ministries to support and implement the
    plan. Therefore, it is incumbent on all
    ministries to accept all the implicit and
    explicit responsibilities mentioned in the
    31
    NDMP even if they are beyond what are
    explicitly mentioned in the normal rules
    of business. Disaster management requires
    assumption of responsibilities beyond the
    normal functioning. The NDMP will be
    complemented by separate contingency
    plans, SOPs, manuals, and guidelines at
    all levels of the multi-tiered governance
    system.”
  28. The above part of the Plan categorically states
    that the Plan will be complemented by several
    contingency plans, Standard Operating Procedures
    (SOPs), Manuals and Guidelines at all levels of the
    multi-tiered governance system. Paragraph 1.13 deals
    with ‘types of Disasters’. Paragraph 1.13.1,
    ‘Natural Hazards’ have been enumerated in five major
    categories. Sub-category (5) is to the following
    effect:-
    “1.13.1 Natural Hazards
    1)…
    5)Biological Process or phenomenon
    or organic origin or conveyed by
    biological vectors, including exposure
    to pathogenic micro-organisms, toxins
    and bioactive substances that may cause
    loss of life, injury, illness or other
    health impacts, property damage, loss
    of livelihoods and services, social and
    32
    economic disruption or environmental
    damage.”
  29. Under Table 1-1, ‘Categories of Natural Hazards’
    have been detailed. Item (5) of the Table 1-1 is to
    the following effect: –
    “Table 1-1: Categories of Natural Hazards
    Family Main
    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
    infestatio
    ns
     Animal
    stampedes
  30. Table 1-3, provides for ‘Nodal Ministry for
    Management/Mitigation of Different Disasters’ with
    regard to Biological Emergencies, Nodal Ministry is
    33
    notified as Ministry of Health and Family
    Welfare(MoHFW). Under paragraph 2.2.3.3, Biological
    and Public Health Emergencies have been dealt with.
    The First paragraph of the above is as follows:-
    “…Disasters related to this subgroup 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…”
  31. Paragraphs 6 and 7 deals with “Building Disaster
    Resilience – Responsibility Framework, Part A and B”.
    Dealing with Biological and Public Health Emergencies
    34
    in paragraph 7.15, following are the sub-heads under
    the paragraph: –
    “7.15 Biological and Public Health
    Emergencies (BPHE)
    7.15.1 Understanding Risk
    7.15.2 Inter-Agency Coordination
    7.15.3 Investing in DRR–Structural
    Measures
    7.15.4 Investing in DRR- Non-structural
    Measures
    7.15.5 Capacity Development
    7.15.6 Climate Change Risk Management”
  32. A detailed chart has been prepared under
    paragraph 7.15 in five parts and it shall be useful
    to notice the only first portion of paragraph 7.15.1,
    item 1, which is to the following effect: –
    “7.15.1 Understanding Risk
    Biological & Public Health Emergencies (BPHE)
    Sub-Thematic
    Area for DRR
    Central/State Agencies and their Responsibilities
    Centre# Responsibility
  • Centre
    State# Responsibility
    -State
    35
    1.
    Observation
    Networks,
    Information
    Systems,
    Monitoring,
    Research,
    Forecasting,
    Early Warning
    and
    Zoning/Mapping
    MHFW*
    (NCDC),
    MAFW, MHA,
    MOD, MOES,
    MOEFCC, MOR,
    MLBE, MEITY,
    NDMA
    Recurring/
    Regular(RR)
     Support for
    training
     Extend
    technical
    support
    Medium Term(T2)
     Establishment
    of Early
    Warning System
     Strengthening
    IDSP and early
    warning systems
    at regional
    levels
     Epidemiological
    disease mapping
     Health
    facilities
    mapping
    HFWD*,
    DMD$,
    SDMA, RD,
    DRD, UDD,
    DWSD,
    EDD, PD,
    EFD, AHD,
    WCD,
    PRI/ULB,
    SLRTI,
    DDMA
    Recurring/
    Regular(RR)
    Maintaining
    preventive
    measures as per
    norms
    Short Term(T1)
    Strengthening
    integrated health
    surveillance
    systems
    Medium Term(T2)
     Establishing and
    maintain
    community-based
    network for
    sharing alerts
     Strengthening
    IDSP
    Long Term(T3)
    States should,
    modify or adapt
    IMD’s warning
    system according
    to thresholds
    applicable in each
    state
  1. The other items apart from item (1) as noticed
    above in paragraph 7, which are relevant is as
    follows:-
    Biological & Public Health Emergencies (BPHE)
    Sub-Thematic
    Area for DRR
    Central/State Agencies and their Responsibilities
    Centre# Responsibility –
    Centre
    State# Responsibility
    -State
    36
  2. Hazard Risk
    Vulnerability
    and Capacity
    Assessment
    (HRVCA)
    MHFW, MAFW, MHA,
    MOD, MOES,
    MOEFCC,
    MSJE, NDMA
    Recurring/
    Regular (RR)
    • Promote studies,
    documentation
    and research
    • Provide Training
    & Technical
    support
    • Studies on
    vulnerabilities
    and capacities
    covering
    social,
    physical,
    economic,
    ecological,
    gender, social
    inclusion and
    equity aspects
    Short-Term (T1)
    Develop guidelines
    HFWD,
    DMD$,
    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$, SDMA, DRD, UDD, DWSD, EDD, PD, EFD, AHD, WCD, PRI, ULB, SLRTI, DDMA Short Term (T1)  Create awareness preventive measures  Extensive IEC campaigns to create awareness through print, electronic and social media Medium Term (T2) Specific messages for highly vulnerable groups such as elderly, young children, outdoor workers and slum 37 residents 4 Disaster Data Collection and Management MHA ,
    MOSPI, all
    ministries/
    depts.
    Recurring/
    Regular (RR)
    Systematic data
    management of data
    on disaster damage
    and loss
    assessments
    Short Term (T1)
    Disaster Damage and
    Losses 2005-2015
    baseline
    DMD$,
    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 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.
  3. 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 – Nonstructural measures. Paragraph 7.15.5 deals with
    capacity development. Paragraph 7.15.6 deals with
    climate change risk management. The plan, thus,
    38
    contains detailed treatment of Biological and Public
    Health Emergencies as noticed above, which have been
    detailed at pages 117 to 130 of the Annexure-R1 of
    the counter affidavit. All aspects of Biological and
    Public Health Emergencies have been, thus, dealt in
    systematic and planned manner. The Plan of 2019 in
    different paragraphs deals with entire framework.
  4. The submission which has been pressed by
    petitioner is that despite existence of Plan, 2019,
    there has to be specific Plan dealing with COVID-19,
    hence, Union of India may be directed to prepare a
    National Plan under Section 11 for COVID-19. Section
    11 of the Act provides that there shall be a plan for
    Disaster Management for the whole of the Country.
    Sub-Section (3) of Section 11 requires that the
    National Plan shall include: –
    “11.(3) The National Plan shall include-
    (a) measures to be taken for the
    prevention of disasters, or the
    mitigation of their effects;
    39
    (b) measures to be taken for the
    integration of mitigation measures
    in the development plans;
    (c) measures to be taken for
    preparedness and capacity building
    to effectively respond to any
    threatening disaster situations or
    disaster;
    (d) roles and responsibilities of
    different Ministries or Departments
    of the Government of India in
    respect of measures specified in
    clauses (a), (b) and (c). ”
  5. 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.
  6. National Plan and guidelines as contemplated by
    the statute for Disaster Management is by its very
    nature prior to the occurrence of any disaster and as
    40
    a measure of preparedness. It is not conceivable that
    a National Plan would be framed after the disaster
    has occurred. A National Plan encompasses and
    contemplate all kinds of disasters.
  7. As noticed above, Biological and Public Health
    Emergencies has already been contemplated in the
    National Plan, 2019, which as noticed in table 1-1
    under paragraph 1.13.1 specifically includes
    epidemics: Viral, Bacterial, Parasitic, Fungal and
    prion infections. Novel Coronavirus is an epidemic
    which has become a pandemic. Epidemics of different
    nature and extent have taken place in this country as
    well as other countries of the world. A pandemic is
    an epidemic, i.e., spread over multiple countries/
    continents. An epidemic, as a disaster has been known
    and recognized throughout the world with which most
    of the countries are infected time and again. As
    noticed above, Plan-2019 is complemented by several
    41
    plans, Standard Operating Procedures (SOPs), Manuals,
    Guidelines at all levels of the Government.
  8. 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…”
  9. Thus, the National Disaster Management Authority
    was well aware of the epidemics and had issued
    42
    guidelines in the year 2008 itself which has been
    further detailed in Plan-2019. All aspects of the
    epidemics, all measures to contain an epidemic,
    preparedness, response, mitigation have been
    elaborately dealt in Plan, 2019. Unless the National
    Plan as contemplated under Section 11 contains all
    aspects of disaster including the Biological and
    Public Health Emergencies, it will not be possible
    for the Governments to immediately respond and
    contain an epidemic.
  10. The Disaster Management Act, 2005 contain ample
    powers and measures, which can be taken by the
    National Disaster Management Authority, National
    Executive Committee and Central Government to prepare
    further plans, guidelines and Standard Operating
    Procedure (SOPs), which in respect to COVID-19 have
    been done from time to time. Containment Plan for
    Novel Coronavirus, 2019 has been issued by Ministry
    of Health and Family Welfare, Government of India,
    43
    copy of which updated up to 16.05.2020 has been
    brought on record as Annexure-R4. There are no lack
    of guidelines, SOPs and Plan to contain COVID-19, by
    Nodal Ministry and Annexure R-6 has been brought on
    record issued by Ministry of Health and Family
    Welfare, Government of India, i.e., Updated
    Containment Plan for Large Outbreaks Novel
    Coronavirus Disease, 2019 (COVID-19).
  11. 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 COVID19 pandemic. COVID-19 being a Biological and Public
    Health Emergency, which has been specifically covered
    by National Plan, 2019, which is supplemented by
    various plans, guidelines and measures, there is no
    lack or dearth of plans and procedures to deal with
    COVID-19.
    44
  12. 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.”
  13. In view of above discussion, we do not find any
    merit in the claim of the petitioner that Union of
    India be directed to prepare a National Plan under
    Section 11 for COVID-19. National Plan, 2019 have
    already been there in place supplemented by various
    orders and measures taken by competent authorities
    under Disaster Management Act, 2005, there is no
    occasion or need to issue any direction to Union of
    45
    India to prepare a fresh National Plan for COVID-19.
    We, thus, hold that Union of India is not obliged to
    prepare, notify and implement a fresh National
    Disaster Management Plan for COVID-19.
    QUESTION NO.II
    II) Whether the Union of India was obliged to lay
    down the minimum standards of relief under
    Section 12 of Act, 2005, for COVID-19
    irrespective of earlier guidelines issued under
    Section 12 of the Act laying down the minimum
    standards of relief?
  14. Section 12 of the Act, deals with guidelines for
    Minimum Standards of Relief. Section 12 is as
    follows:-
    “12. Guidelines for minimum standards of
    relief. —The National Authority shall
    recommend guidelines for the minimum
    standards of relief to be provided to
    persons affected by disaster, which shall
    include, —
    (i) the minimum requirements to
    be provided in the relief
    camps in relation to
    shelter, food, drinking
    water, medical cover and
    sanitation;
    46
    (ii) the special provisions to
    be made for widows and
    orphans;
    (iii) ex gratia assistance on
    account of loss of life as
    also assistance on account
    of damage to houses and for
    restoration of means of
    livelihood;
    (iv) such other relief as may be
    necessary.”
  15. The petitioner’s case as noticed above is that
    the Centre should come up with detailed guidelines
    under Section 12(ii) and (iii) of Disaster Management
    Act, 2005, recommending special provisions to be made
    for widows and orphans and ex-gratia assistance to be
    provided to the kith and kin of those losing life
    because of COVID-19 infections but also as a result
    of harsh lockdown restrictions. It is submitted that
    there are no guidelines providing for minimum
    standards for COVID-19. The above claim of the
    petitioner is refuted by the respondents. The
    respondents have brought on record the guidelines of
    minimum standards of relief under Section 12 as
    47
    existing prior to COVID-19, which has been filed as
    Annexure-R7 to the counter affidavit. The guidelines
    filed as Annexure-R7 deals with
    (i) definition of Relief and Rehabilitation
    Camp,
    (ii) Minimum standards in respect of Shelter in
    relief camps,
    (iii) Minimum Standards in respect of Food in
    relief camps,
    (iv) Minimum Standards in respect of Water in
    relief camps,
    (v) Minimum Standards in respect of Sanitation
    in relief camps,
    (vi) Minimum Standards in respect of medical
    cover in relief camps and
    (vii) Minimum Standards of Relief for Widows and
    Orphans.
  16. The guidelines brought on record under AnnexureR7, which were in existence since before declaration
    48
    of COVID-19 pandemic, covers all statutory
    requirement as enumerated in Section 12. Section 12
    contemplates minimum standards of relief to be
    provided to persons affected by disaster. The word
    ‘disaster’ mentioned in Section 12 encompasses all
    the disasters including the present disaster. Section
    12 does not contemplate that there shall be different
    guidelines for minimum standards of relief for
    different disasters.
  17. The uniform guidelines are contemplated so that
    persons affected by disaster are provided with
    minimum requirement in the relief camps in respect of
    shelter, food, drinking water, medical cover and
    sanitation and other reliefs as contemplated in the
    section. There being already guidelines for minimum
    standards in place even before COVID-19, the said
    guidelines for minimum standards holds good even for
    those who are affected by COVID-19. Section 12 does
    not contemplate that afresh guidelines for the
    49
    minimum standards of relief be issued with regard to
    COVID-19. The prayer of the petitioner to direct the
    Union of India to issue fresh guidelines under
    Section 12 to be provided to persons infected with
    COVID-19 is misconceived.
  18. 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.
  19. In view of the foregoing discussions, we hold
    that Union of India is not obliged to lay down
    minimum standards of relief under Section 12 of the
    50
    Act, 2005 for COVID-19 and the guidelines issued
    under Section 12 providing for minimum standards of
    relief holds good for pandemic COVID-19 also.
    QUESTION NOS. 3, 4 AND 5
    III) Whether Union of India is obliged to utilise
    National Disaster Response Fund created under
    Section 46 of the Act for the purpose of
    providing assistance in the fight of COVID-19?
    IV) Whether all the contributions/grants from
    individuals and institutions should be
    credited to the NDRF in terms of Section 46(1)
    (b) of the Act rather than PM CARES Fund?
    V) Whether all the funds collected in the PM
    CARES Fund till date be directed to be
    transferred to the NDRF?
  20. All the three questions being inter-related are
    taken together. The submissions of the petitioner
    centre around National Disaster Response Fund (NDRF)
    and PM CARES Fund. We need to notice the nature and
    character of these funds for appreciating the
    submissions made by the learned counsel for the
    parties. Chapter IX of the Disaster Management Act,
    2005 deals with Finance, Accounts and Audit. Section
    51
    46 provides for National Disaster Response Fund.
    Section 46 reads:
    “46. National Disaster Response Fund.—(1)
    The Central Government may, by
    notification in the Official Gazette,
    constitute a fund to be called the
    National Disaster Response Fund for
    meeting any threatening disaster situation
    or disaster and there shall be credited
    thereto—
    (a) an amount which the Central
    Government may, after due
    appropriation made by
    Parliament by law in this
    behalf provide;
    (b) any grants that may be made by
    any person or institution for
    the purpose of disaster
    management.
    (2) The National Disaster Response
    Fund shall be made available to the
    National Executive Committee to be applied
    towards meeting the expenses for emergency
    response, relief and rehabilitation in
    accordance with the guidelines laid down
    by the Central Government in consultation
    with the National Authority.”
  21. The Central Government by notification dated
    27.09.2010 which was published in Gazette
    Extraordinary on 28.09.2010 issued under sub-Section
    52
    (1) of Section 46 of Act, 2005 constituted “National
    Disaster Response Fund”. The notification dated
    27.09.2010 reads:
    “MINISTRY OF HOME AFFAIRS
    NOTIFICATION
    New Delhi, the 27th September, 2010
    s.O.2346(E).- In exercise of the
    powers conferred by sub-section (1) of
    Section 46 of the Disaster Management Act,
    2005 (53 of 2005), the Central Government
    hereby constitutes the National Disaster
    Response Fund (hereinafter NDRF) for
    meeting any threatening disaster situation
    or disaster.
    [F.No.32-3/2010-NDM-I]
    R.K.SRIVASTAVA, Jr. Secy.”
  22. Ministry of Home Affairs (Disaster Management
    Division) has issued guidelines on Constitution and
    Administration of the National Disaster Response Fund
    (NDRF). Section 46(1) as noted above contemplates
    crediting of two kind of amounts, i.e., (a) an amount
    which the Central Government may, after due
    appropriation made by Parliament by law in this
    53
    behalf provide; and (b)any grants that may be made by
    any person or institution for the purpose of disaster
    management.
  23. The guidelines for constitution and
    administration of NDRF have been brought on record by
    the petitioner at page 129 of the writ petition. The
    guidelines came into force with effect from financial
    year 2010-11. Paragraph 3.1 enumerated the calamities
    covered under NDRF. Paragraph 3.1 is as follows:
    “3.1 Natural calamities of cyclone,
    drought, earthquake, fire, flood, tsunami,
    hailstorm, landslide, avalanche, cloud
    burst and pest attack considered to be of
    severe nature by Government of India and
    requiring expenditure by a State
    Government in excess of the balances
    available in its own State Disaster
    Response Fund (SDRF), will qualify for
    immediate relief assistance from NDRF.”
  24. Paragraph 5 of the guidelines deals with
    contribution to the NDRF. Paragraphs 5.1 to 5.5 are
    as follows:
    “5.1 The closing balance of the NCCF at
    the end of financial year 2009-10 shall be
    54
    the opening balance of the NDRF in the
    year 2010-11.
    5.2 Funds will be credited into the NDRF
    in accordance with the provisions of the
    Disaster Management Act, 2005.
    5.3 The budget provision for transferring
    funds to the NDRF as mentioned in para 5.2
    above shall be made in the Demand for
    grants no. 35- “Transfers to State and UT
    Governments” (under non-plan provision).
    Releases to State Governments will be made
    by the Ministry of Finance from this
    provision.
    5.4 During the years 2010-15 transfers to
    the NDRF established in the Public Account
    of India will be made by operating the
    following heads of account: Major Head
    “2245-Relief on account of Natural
    Calamities – 80- General-797-Transfers to
    Reserve Funds and Deposit Account’-
    Transfer to National Disaster Response
    Fund.
    5.5 Contributions made by any person or
    institution for the purpose of disaster
    management will also be credited to the
    NDRF. Modalities covering such
    contributions will be prescribed in due
    course.”
    55
  25. Paragraph 7.1 of the guidelines deals with
    assessment of relief assistance from the NDRF.
    Paragraph 7.1 is as follows:
    “7.1 Upon a request made by a State not
    having adequate balance in its State
    Disaster Response Fund (SDRF), Ministry of
    Home Affairs or the Ministry of
    Agriculture, as the case may be, will
    assess whether a case for additional
    assistance from NDRF is made out under
    these guidelines and the approved items
    and norms of assistance under NDRF/SDRF.
    The following procedure will be adopted
    for making such assessment:
    (i) The memorandum of the State
    Government will be examined to
    assess the likely requirement
    of funds as per items and
    norms of expenditure under
    SDRF/NDRF. If the preliminary
    examination reveals that there
    are adequate funds in SDRF
    with the State for providing
    relief as per norms, the State
    would be advised accordingly.
    (ii) If the preliminary examination
    reveals that the State is in
    need of assistance, a Central
    Team will be deputed for
    making an on the spot
    assessment.
    56
    (iii) The report of the Central Team
    shall be examined by the
    National Executive Committee
    (NEC) constituted under
    section 8 of the DM Act, 2005.
    The NEC will assess the extent
    of assistance and expenditure
    which can be funded from the
    NDRF, as per the norms of
    NDRF/SDRF, and make
    recommendations.
    (iv) Based on the recommendations
    of NEC, a High Level Committee
    (HLC) will approve the quantum
    of immediate relief to be
    released from NDRF.”
  26. The guidelines for administration of the NDRF
    have been revised with effect from financial year
    2015-16 which have been brought on record at page 154
    of the writ petition. Paragraph 3.1 of the guidelines
    is same as under guidelines for the financial year
    2010-11. Paragraph 4.1 provides:
    “4.1 The NDRF will be operated by the
    Government of India for the purpose of
    providing immediate relief to people
    affected by the above mentioned calamities
    which are assessed as being of ‘severe
    nature’, following the procedure described
    in para 7 of these guidelines. NDRF is
    classified in the Public Account in the
    57
    sub-section (b) ‘Reserve Funds not bearing
    Interest’ of the Government of India under
    the major head 8235- ‘General and other
    Reserve Funds’ – 119- National Disaster
    Response Fund”.
  27. Paragraph 5 deals with contribution to the NDRF
    and there are some changes in the guidelines in
    paragraph 5. Paragraphs 5.1 to 5.4 of the new
    guidelines are as follows:
    “5.1 The closing balance of the NDRF at
    the end of financial year 2014-15
    shall be the opening balance of the
    NDRF in the year 2015-16.
    5.2 Funds will be credited into the NDRF
    in accordance with the provisions of
    the section 46 (a) & (b) of Disaster
    Management Act, 2005.
    5.3 The budget provision for transferring
    funds to the NDRF as mentioned in para
    5.2 above shall be made in the Demand
    for grants no. 35- “Transfers to State
    and UT Governments” (under non-plan
    provision). Releases to State
    Governments will be made by the
    Ministry of Finance from this
    provision.
    58
    5.4 During the years 2015-20 transfers to
    the NDRF established in the Public
    Account of India will be made by
    operating the following heads of
    account: Major Head “2245-Relief on
    account of Natural Calamities – 80-
    General-797-Transfers to Reserve Funds
    and Deposit Account’-Transfer to
    National Disaster Response Fund.”
  28. 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.
  29. We may now notice the PM CARES Fund. Petitioner
    has brought on record certain details of PM CARES
    Fund as Annexure-P13. The details about the PM CARES
    59
    Fund as brought on record as Annexure-P13 of the writ
    petition are as follows:
    “Keeping in mind the need for having a
    dedicated national fund with the primary
    objective of dealing with any kind of
    emergency or distress situation, like
    posed by the COVID-19 pandemic, and to
    provide relief to the affected, a public
    charitable trust under the name of ‘Prime
    Minister’s Citizen Assistance and Relief
    in Emergency Situations Fund’ (PM CARES
    Fund)’ has been set up.
    Click here to Donate Online.
    Objectives :
    • To undertake and support relief or
    assistance of any kind relating to a
    public health emergency or any other kind
    of emergency, calamity or distress, either
    man-made or natural, including the
    creation or upgradation of healthcare or
    pharmaceutical facilities, other necessary
    infrastructure, funding relevant research
    or any other type of support.
    • To render financial assistance, provide
    grants of payments of money or take such
    other steps as may be deemed necessary by
    the Board of Trustees to the affected
    population.
    • To undertake any other activity, which
    is not inconsistent with the above
    Objects.
    60
    Constitution of the Trust :
    • Prime Minister is the ex-officio
    Chairman of the PM CARES Fund and Minister
    of Defence, Minister of Home Affairs and
    Minister of Finance, Government of India
    are ex-officio Trustees of the Fund.
    • The Chairperson of the Board of Trustees
    (Prime Minister) shall have the power to
    nominate three trustees to the Board of
    Trustees who shall be eminent persons in
    the field of research, health, science,
    social work, law, public administration
    and philanthropy.
    • Any person appointed a Trustee shall act
    in a pro bono capacity.
    Other details :
    • The fund consists entirely of voluntary
    contributions from individuals/
    organizations and does not get any
    budgetary support. The fund will be
    utilised in meeting the objectives as
    stated above.
    • Donations to PM CARES Fund would qualify
    for 80G benefits for 100% exemption under
    the Income Tax Act, 1961. Donations to PM
    CARES Fund will also qualify to be counted
    as Corporate Social Responsibility (CSR)
    expenditure under the Companies Act, 2013
    • PM CARES Fund has also got exemption
    under the FCRA and a separate account for
    receiving foreign donations has been
    opened. This enables PM CARES Fund to
    61
    accept donations and contributions from
    individuals and organizations based in
    foreign countries. This is consistent with
    respect to Prime Minister’s National
    Relief Fund (PMNRF). PMNRF has also
    received foreign contributions as a public
    trust since 2011.
    CLICK HERE TO DONATE ONLINE”
  30. 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 exofficio Chairman of PM CARES Fund, with other exofficio and nominated Trustees of the Fund. The PM
    CARES Fund consists entirely of voluntary
    contributions from individuals/organisations and does
    not get any Budgetary support. No Government money is
    credited in the PM CARES Fund.
    62
  31. 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.
  32. There are two reasons for not accepting the above
    submission. Firstly, paragraph 5.5 of earlier
    guidelines which contemplated contributions by any
    63
    person or institution for the purpose of disaster
    management to the NDRF are very much still there in
    the new guidelines, which have come into force with
    effect from financial year 2015-16. New guidelines
    contain the same heading, i.e., “Contribution to the
    NDRF” and guideline 5.2 provides “Funds will be
    credited into the NDRF in accordance with the
    provisions of the Section 46(1)(a) & (b) of the
    Disaster Management Act, 2005.” The above guideline
    5.2 specifically referred to Section 46(1)(a) & (b)
    and Section 46(1)(b) expressly provides that any
    grants that may be made by any person or institution
    for the purpose of disaster management shall be
    credited into the NDRF. The submission that after the
    new guidelines, it is not possible for any person or
    institution to make any contribution to the NDRF is,
    thus, misconceived and incorrect. According to the
    statutory provisions of Section 46 as well as new
    guidelines enforced with effect from financial year
    64
    2015-16 any person or institution can still make
    contribution to the NDRF.
  33. 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.
  34. Another limb of submission of Shri Dave is that
    although the Government of India vide its letter
    dated 14.03.2020 has decided to treat COVID-19 as a
    notified disaster for the purpose of providing
    assistance under SDRF but no similar notification has
    been issued for the purpose of providing assistance
    for COVID-19 under NDRF. The notification dated
    14.03.2020 has been brought on record as Annexure-P10
    of the writ petition which reads as follows:
    65
    “No.33-4/2020-NDM-I
    Government of India
    Ministry of Home Affairs
    (Disaster Management Division)
    C-Wing, 3rd Floor, NDCC-II
    Jai Singh Road, New Delhi -110001
    Dated 14.03.2020
    To
    The Chief Secretaries
    (All States)
    Subject: Items and Norms of assistance
    from the State Disaster Response
    Fund (SDRF) in wake of COVID-19
    Virus Outbreak
    Sir/Madam
    I am directed to refer this Ministry’s
    letter No.32-7/2014 dated 8th April, 2015
    on the above mentioned subject.
  35. The Central Government, keeping in
    view the spread of COVID-19 virus in India
    and the declaration of COVID-19 as
    pandemic by the World Health Organisation
    (WHO), by way of a special one time
    dispensation, has decided to treat it as a
    notified disaster for the purpose of
    providing assistance under SDRF. A list
    of items and norms of assistance for
    containment of COVID-19 Virus in India
    eligible from SDRF is annexed.
    Yours faithfully,
    66
    (Sanjeev Kumar Jindal)
    Joint Secretary to Government of India
    Tel: 23438096
    Copy to AS(UT), MHA for making similar
    provisions for utilization of UT Disaster
    Response Funds by the Union Territories.
    CC for information: PS to HM/MOS(N)/HS”
  36. After issuance of the above notification, the
    Government of India, Ministry of Home Affairs
    (Disaster Management Division) issued order of
    03.04.2020 on the subject: “Advance release of
    Central share from State Disaster Risk Management
    Fund (SDRMF) for the year 2020-21”. By the said order
    the Central Government has released first instalment
    of Rs. 11,092/- crores out of Rs.22,184/- crores
    which was the Central Share of SDRMF. All States
    have been allocated different amounts for the purpose
    of providing assistance under SDRMF. Annexure to the
    said notification is at page 161, which indicates
    that maximum grant allocated was to the State of
    Maharashtra as Rs.1,611/- crores as first instalment
    67
    and minimum amount to State of Goa, i.e., Rs.6/-
    crores by the Centre. The notification dated
    14.03.2020 clearly permits providing the assistance
    under SDRMF for COVID-19. In event, any State
    expenditure is in excess of the balance in the
    State’s SDRMF, the State is entitled for the release
    of fund from NDRF as it is clear from new guidelines
    filed at pages 154 to 158 of the writ petition. The
    submission of the petitioner that NDRF cannot be used
    for any assistance for COVID-19, thus, cannot be
    accepted.
  37. There is one more aspect of the matter which
    needs to be noted. When the Centre is providing
    financial assistance to the State to take measures to
    contain COVID-19, as we have noticed above that by
    order dated 03.04.2020 first instalment of Rs.
    11,092/- crores which is the Central Share to the
    SDRMF has been given and there is nothing on record
    that any State has exceeded the expenditure in excess
    68
    of the balance in the State’s SDRMF, there is no
    occasion of asking more fund by the State from NDRF.
    When the Central Government is providing financial
    assistance to the States to contain COVID-19 it is
    not for any PIL petitioner to say that Centre should
    give amount from this fund or that fund. The
    financial planning is in the domain of the Central
    Government, which financial planning is made after
    due deliberation and consideration. We, thus, do not
    find any substance in the submission of the
    petitioner that there is any statutory
    restriction/prohibition in utilization of NDRF for
    COVID-19. More so when sub-section (2) of Section 46
    specifically provides that NDRF shall be made
    available to the National Executive Committee to be
    applied towards meeting the expenses for emergency
    response, relief and rehabilitation in accordance
    with the guidelines laid down by the Central
    Government, the NDRF can be used for containment of
    COVID-19.
    69
  38. 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.
  39. 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.”
  40. The mere fact that administration of the Trust is
    vested in trustees, i.e., a group of people, will not
    70
    itself take away the public character of the Trust as
    has been laid down in Mulla Gulam Ali & Safiabai D.
    Trust Vs. Deelip Kumar & Co., (2003) 11 SCC 772. In
    paragraph 4, this Court laid down:
    “4. The mere fact that the control in
    respect of the administration of the Trust
    vested in a group of people will not
    itself take away the public character of
    the Trust……………………………..”
  41. The contributions made by individuals and
    institutions in the PM CARES Fund are to be released
    for public purpose to fulfill the objective of the
    trust. The PM CARES Fund is a charitable trust
    registered under the Registration Act, 1908 at New
    Delhi on 27.03.2020. The trust does not receive any
    Budgetary support or any Government money. It is not
    open for the petitioner to question the wisdom of
    trustees to create PM CARES fund which was
    constituted with an objective to extend assistance in
    the wake of public health emergency that is pandemic
    COVID-19.
    71
  42. 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.
  43. We may notice one more aspect with regard to
    COVID-19. We have noticed above that guidelines which
    were issued for constitution and administration of
    NDRF and State’s SDRMF, the guidelines provided
    utilization of fund for limited calamities, which did
    not include any biological and public health
    emergency. We have already noticed Clause 3.1 of
    72
    guidelines for administration of NDRF, which did not
    provide for the calamities which cover the biological
    and public health emergency. Thus, under the
    guidelines which were in existence with effect from
    financial year 2015-16 neither NDRF nor SDRF covered
    the biological and public health emergencies. It was
    only by notification dated 14.03.2020 that COVID-19
    was treated as notified disaster for the purpose of
    providing assistance under SDRF. Obviously prior to
    this notification dated 14.03.2020 no contribution by
    any person or institution in the NDRF could have been
    made with respect to specified disaster, namely,
    biological and public health emergency like COVID-19,
    Outbreak of COVID-19 in India as well as other
    countries of the World required immediate enhancement
    in the infrastructure of medical health and creation
    of fund to contain COVID-19. At this need of the hour
    no exception can be taken to the constitution of a
    public charitable trust, namely, PM CARES Fund to
    73
    have necessary financial resources to meet the
    emergent situation.
  44. 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,
  45. The contribution by any person or by any
    74
    institution in PM CARES Fund is voluntary and it
    is open for any person or institution to make
    contribution to the PM CARES Fund.
    Answer 5. The funds collected in the PM CARES
    Fund are entirely different funds which are funds
    of a public charitable trust and there is no
    occasion for issuing any direction to transfer
    the said funds to the NDRF.
  46. In view of the foregoing discussions, the prayer
    ‘a’ and ‘b’ made in the writ petition are refused.
    With respect to prayer ‘c’, we make it clear (i) that
    there is no statutory prohibition for the Union of
    India utilizing the NDRF for providing assistance in
    the fight of COVID-19 in accordance with the
    guidelines issued for administration of NDRF; (ii)
    there is no statutory prohibition in making any
    contribution by any person or institution in the NDRF
    as per Section 46(1)(b)of the Act, 2005.
    75
  47. 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.
  48. Subject to clarification of law as made above,
    the writ petition is dismissed.
    ………………….J.
    ( ASHOK BHUSHAN )
    ………………….J.
    ( R. SUBHASH REDDY )
    ………………….J.
    ( M.R. SHAH )
    New Delhi,
    August 18, 2020.