PM CARES Fund: Review petition filed in SC against dismissal of PIL seeking transfer of funds to NDRF

The Supreme Court has been moved in a Review Petition against its August 18 judgment disposing of a PIL filed by the Centre for Public Interest Litigation (CPIL) seeking to transfer funds from PM CARES Fund to National Disaster Response Fund (NDRF) created under the National Disaster Management Act, 2005, legal news website LiveLaw.in has reported.

Dismissing the plea, the court had held that there was no need for a fresh national disaster relief plan for COVID-19, and that the minimum standards of relief as issued under the Disaster Management Act prior to COVID-19 were enough. The bench also 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.

The review plea has been filed by petitioner-in-person Mukesh Kumar, an intervenor in the original proceedings.

"As an intervener, the petitioner has raised an issue regarding competence of the Council of Ministers in creating PM CARES Fund, as the role of Council of Ministers has been confined to advisory body, except where specific statute is created by the Parliament for any

member of the Council of Minister or otherwise any person/ authority exercising executive functions in terms of Article 53(3)(b) of the Constitution of India, read with Articles 74, 77 & 78," it is advanced.

Accordingly, it is urged that not only PM CARES Fund, but also creation of PMNRF and CMRF are unconstitutional, unless the same are created by way of enactment of the Parliament making thereby the Prime Minister, other ministers as Trustees therein, and similarly unless Chief Minister is statutorily made Trustee to the CMRF for each State.

"This core issue, being competence of creating PM CARES Fund is overlooked or ignored in the impugned Judgment dated 18.8.2020, and hence, the present Review Petition has been filed on the grounds of error apparent on the face of record of the impugned judgment," it is submitted.

Reference is made to the Delhi High Court decision dated 23.5.2018, where Justice Sunil Gaur has given a "much convincing dissenting decision" to hold that PMNRF is not a "public authority" for the purpose of section 2(h) of RTI Act 2005. "Unfortunately, the case there did not touch upon the competence of creating PMNRF in terms of the Constitutional provision, and as such, the judgments similar to the one passed as impugned judgment dated 18.8.2020 will have "judicial force" to legitimize working of an authority like PM Cares Fund, PMNRF, CMRF, etc, which is otherwise not permitted under the Constitutional provisions," it is suggested.

The plea makes scrutiny of the following organisations headed by the Prime Minister, to conclude that each of these are advisory bodies to the government of India, or autonomous bodies, fully complying with Article 74 and Article 53(3)(b):

(1) Planning Commission, till 31.12.2014

(2) NITI Aayog (National Institution for Transforming India) w.e.f. 1.1.2015

(3) National Development Council (NDC) or the Rashtriya Vikas Parishad, 6.8.1952

(4) National Integration Council, Sept' 1961

(5) Nuclear Command Authority

(6) PM's Council on Climate Change

(7) Department of Space (DoS)

(8) Department of Atomic Energy (DAE)

(9) National Commission on Population, 11.5.2000

(10) National Ganga River Basin Authority (NGRBA),

(11) National Board for Wildlife

(12) National Disaster Management Authority (NDMA), 30.5.2005

(13) Council of Scientific and Industrial Research (CSIR), 26.9.1942

"Institutes/ autonomous bodies created before commencement of the Constitution of India, 1950 need to be examined under Constitutional provision. In contract thereto, the PM CARES Fund is run by the trusteeship of Council of Ministers themselves, without any statutory support under Article 53(3)(b) of the Constitution, and hence, there is no government agency involved for its scrutiny by CAG or transparency under RTI Act 2005, and it is being a private Trust, is also beyond Parliamentary control in terms of Rule 180B(ii) (Conditions of admissibility) of Rules of procedures and Conduct of Business in the Council of States (Rajya Sabha), under Chapter – XIV (On Raising

Matters of Public Importance), baring admissibility of any matter which is not primarily the concern of the Govt of India," it is contended.

Therefore, it is pressed that the creation of the PM CARES Fund is illegal, unconstitutional and hence, impugned judgment dated 18.8.2020 is unsustainable in the eyes of law.