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Plea In Allahabad HC Questions Legality Of PM CARES

27 Aug 2020 1:25 PM GMT
Plea In Allahabad HC Questions Legality Of PM CARES
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In the backdrop of the recent Supreme Court verdict declining to transfer the funds from PM CARES to National Disaster Response Fund, a supplementary affidavit has been filed before the Allahabad High Court to 'delimit the scope and field' of a plea filed before it challenging the constitutional validity of PM National Relief Fund and the PM CARES Fund.

The Petitioner, Anubhav Singh has submitted that his petition is not the same as the matter directly and substantially in issue in the writ petition decided by the Supreme Court on August 18, 2020.

SC Dismisses Plea To Transfer PM CARES Funds To NDRF; Says Fresh National Disaster Plan For COVID-19 Not Needed

Represented by Advocates Shashwat Anand and Ankur Azad, Mr. Singh has submitted that the ambit, scope and reach of the instant Petition is "quite different, distinct and poles apart" from that of the petition decided by the Supreme Court inasmuch as,

"the 'matter' in the latter petition is laced, laden and founded upon the 'alleged motive of the Government' in constituting the PM-CARES Fund; Whereas, the instant petition impugns the constitutional validity of the said Fund, along with other matters."

He pointed out that only two issues, relating to transfer of funds collected in the PM CARES Fund to the NDRF, are common between the two petitions.

Significantly, the Supreme Court had dismissed the petition for transfer of funds from PM CARES to NDRF and had clarified that the Centre will be free to transfer the funds to NDRF as it deems appropriate and that individuals are at liberty to donate to NDRF.

Since the Petitioner before the High Court had also sought that the money/ funds contained in the PMNRF and PMCARES Fund be transferred/ credited to the NDRF, he has now filed a supplementary affidavit to distinguish their pleadings from what transpired before the Top Court.

The Petitioner has submitted that the following Questions, primarily pertaining to constitutionality of the PMNRF and the PM Cares Fund and applicability of the RTI Act to the PM Cares Fund, do arise for consideration in the petition filed by him:

  • WHETHER, both the PMNRF (constituted in the pre-Constitutional era, as far as back as on 24/01/1948, to deal with disastrous situations when there was neither a law, nor any statutory fund already constituted) and the PMCARES Fund (constituted post-2005 Act by the Central Government on 28/03/2020, in the aftermath of the COVID-19 disaster outbreak) became redundant and void with the commencement of the 2005 Act, pregnant with the constitution of a statutory fund thereunder, being the NDRF, in view of the Section 72 of the said Act?
  • WHEHER, the Respondent No. 1 has the power to constitute a public charitable trust, i.e., the PM-CARES Fund, otherwise than by law, in teeth of the Entry 10 of 8 the Concurrent List in the Seventh Schedule of the Constitution of India, 1950?
  • WHETHER, the field of the PM-CARES Fund was already covered by the 2005-Act and the NDRF constituted thereunder, and as such the PM-CARES Fund is repugnant to the 2005 Act, muchless the NDRF, and hence, unconstitutional and void, to the extent of repugnancy, in view of Article 254 of the Constitution of India, 1950?
  • WHETHER, in view of the above, the Central Government is under obligation to make full disclosure of the accounts, activity and expenditure details of the PM-CARES Fund to the public at large; And to make public the Trust-Deed of the PM-CARES Fund for the access of public generally; both, desirably, by publishing the aforesaid details and trust-deed, upon the Government website for all to see, and the accounts to be updated regularly: And to direct the audit of the PM-CARES Fund to be done by the Comptroller and Auditor General of India (CAG)?
  • WHETHER, it is just and appropriate for the Prime Minister (PM), who is Chairperson of the National Disaster Management Authority (NDMA; National Authority under S. 3 of 2005 Act) which helms and controls the NDRF, to promote and call for funds for the non-statutory PMCARES Fund, instead of the statutory NDRF, thereby, in effect, subduing the statutory fund (NDRF) by the nonstatutory fund (PM-CARES Fund), and consequently, giving rise to clash of interest between both the said funds 9 and creating an outbreak for scramble of money/funds from the same source as contemplated under Section 46(1)(b) of the 2005 Act, and thereby, making the NDRF illusory and weakening, maiming and crippling the 2005 Act?
  • WHETHER, further, in view of the above, the funds lying in both the PMNRF and the PM-CARES Fund, deserve to be transferred/credited to the account of the NDRF, which is the statutory fund, transparent in all respects, while, the said funds are opaque and are unavailable for the access of the public generally, for whose benefit they are purported to be meant for?

The instant petition was filed in June this year by wo practicing Advocates of the High Court, Divya Pal Singh and Anubhav Singh, stating that the PMNRF and PM-CARES are unconstitutional and void, for not being backed by any law and for being at odds with the National Disaster Response Fund (NDRF), which was constituted by the Central Government under Section 46 of the Disaster Management Act, 2005 (DMA).

The Petitioners had submitted that the Government does not have the power to create a Trust, otherwise than by an authority of law, as per Entry 10 of the Concurrent List under the Seventh Schedule of the Constitution.

"Manifestly, the Constitutional Mandate for creating a trust by making a law is an implicit, mandatory and binding prohibition on the power of the Central Government or Prime Minister to create a non-statutory express trust (PMCARES Fund), opaque in nature, to collect money from institutions and public generally during outbreak of disaster (the COVID-19), while, there is a statutory fund, already in place (NDRF) for the same purpose constituted by the Central Govt. under 2005 Act," the plea states.

It was also contended that the NDRF would prevail over the PM-CARES Fund, in terms of Section 72 of the DMA, which stipulates that the Act has an overriding effect and prevails, notwithstanding anything inconsistent therewith, over every instrument or law for the time being in force.

Inter alia, the Petitioners asserted that the NDRF is audited by the CAG and is subject to the Right to Information Act, and it is therefore more transparent when compared to the PM CARES Fund.

The matter was first listed before a Division Bench of the High Court in July this year and the Union of India entered appearance on July 13, through ASG Gyan Prakash.

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