Plea Challenging PM CARES Fund Validity : Supreme Court Asks Petitioner To Seek Review Before High Court

A Bench comprising Justices L. Nageswara Rao and B.R. Gavai noted the submission made by Senior Advocate, Devadatt Kamat, appearing on behalf of the petitioner that all the issues raised in the Writ Petition were not considered by the High Court.

"You might be right in saying that all issues were not considered. We don't know if you had argued. You go and file a review. Let us have the benefit of the High Court order."

At the outset Mr. Kamat submitted that -

"Milords here the High Court has dismissed my WP in limine relying on CPIL(judgment of the Supreme Court)."

He stated that the High Court was not correct in dismissing the Writ Petition solely based on the judgment of the Apex court in CPIL v. Union of India.

The Bench pointed out that one of the prayers is the same.

"Don't say totally different, One of the points was that."

Mr. Kamat submitted that -

"Validity and disclosure was sought in this WP. That is not the scope of judgment in CPIL.This becomes all the more important because the judgment in CPIL is premised on the PM-CARES Fund does not receive money from the Government."

The Bench enquired, "Who are you?"

Mr. Kamat responded, "I am a practicing advocate."

Justice Rao remarked -

"We find too many public spirited lawyers. Last week an advocate in Bangalore was saying reduce NEET cut off marks."

The Bench passed order as under -

"The Ld. Sr. Counsel for the petitioner referred to the relief claimed in the WP and submitted that the points in the WP had not been dealt with by the High Court while dismissing the WP. The only ground on which the WP was dismissed was that the lis is covered by CPIL. The Ld. Sr Counsel seeks permission to withdraw to approach the High Court filing review to argue the other grounds. The Petitioner is at liberty to approach this Court against the order of the High Court."

The SLP filed before the Apex Court challenged the order of the Allahabad High Court, which it claimed, had dismissed the Public Interest Litigation filed under Article 226 of the Constitution of India solely based on the judgment of the Apex Court in Centre for Public Interest Litigation v. Union of India. The petition clarified that the the challenge in the PIL before the High Court was to the validity of the PMCARES Fund and the Prime Minister National Relief Fund ("PMNRF"), in the light of the Disaster Management Act, 2005 ('2005 Act,' for short) and the constitution of the National Disaster Response Fund (NDRF) by the Central Government thereunder, which is statutory fund created by due process of law, which was not the question before the Apex Court in CPIL (supra).

The PMNRF, a public charitable trust, was created on 24.01.1948. After the Constitution of India came into force on 26.01.1950 as per Entry 10 of the Concurrent List in the 7th Schedule, funds were prescribed to be created only by the force of law. Later, in 2005 when the Disaster Management Act was enacted, the National Disaster Relief Fund ("NDRF") was created and the PMNRF lost its utility. On 28.03.2020, during the pandemic, the Central Government created a public charitable trust, PMCARES Fund, without passing any legislation to that effect, in violation of Entry 10. The scrutiny of this trust was also taken out of the purview of the RTI Act, 2005. The petitioner contended that the PMCARES Fund, in effect, substituted a statutory fund i.e. the NDRF, thus weakening the Disaster Management Act, 2005.

The petitioner asserted that apart from the contributions (in Lakhs/day) from various Government Ministries, Departments and Agencies, money from Government controlled funds like the 'Assistance related to Bhopal Gas Leak Disaster', meant for victims of Bhopal Gas tragedy were also diverted to the PMCARES Fund. Even prior to the official declaration of the creation of the fund, public money had been pumped into the PMCARES Fund. It was emphasised that the list of contributions to the fund, which is outside the scrutiny of RTI Act, ran into 400 pages as on 06.03.2021. The fund is also unaudited by the CAG. Therefore, the petition asserted that the opaqueness of a fund receiving huge amounts of public money is in the teeth of the democratic values envisaged in the Constitution and was in contravention of Articles 14,19 ans 21.

The petition submitted that even though Para 5.3 of the Trust Deed of the PMCARES fund states that the Trust is neither intended to be, nor owned, controlled or substantially financed by any Government or any instrumentality thereof, contributions from various Ministries, Agencies and Departments of the Government flow into the fund, almost on a regular basis. As the contributions to the fund are made tax free, it is argued that PMCARES Fund is a Government trust, run by Government money (the public money it would have otherwise received as tax).

Reliance was placed on Aseem Takyar v. Prime Minister National Relief Fund W.P.(C) 3897/2012 and DAV College Trust and Management Society v. Director of Public Instructions (2019) 9 SCC 185 to contend that the PMNRF and PMCARES are public authorities. Under the RTI Act and Article 21 of the Constitution, the public has the right to know about the particulars of every public transaction as held in Raj Narain v. State of U.P. (1975) 3 SCR 360.

It was also pointed out that the Prime Minister is the ex-officio Chairman of both the PMNRF and the PMCARES Fund. He is also the Chairperson of NDMA, the National Authority under the 2005 Act, which controls the NDRF. But, the PMCARES Fund is promoted for donations undermining the NDRF which unlike the PMCARES Fund has statutory backing. As per Section 72 of the Disaster Management Act, a statutory fund prevails over a non-statutory fund. It was asserted that the Disaster Management Act which created NDRF is a complete code in itself as observed by the Apex Court in Ficus Pax Pvt. Ltd. v. Union of India (2020) 4 SCC 810.

Apart from seeking issuance of notice in the matter, the petition had also sought the following interim reliefs:

1. Grant ex-parte ad interim order, direction or writ, directing the Respondent no. 1 to make full disclosure of the statement of accounts, activity and expenditure details of the PM-CARES Fund to this Hon'ble Court and to the public at large, desirably, by publishing the aforesaid details, upon the Government website for all to see, and the accounts to be updated regularly, from time to time; AND/OR
2. Grant a further ad interim order, direction or writ, directing the audit of the PM-CARES Fund to be done by the Comptroller and Auditor General of India (CAG) and publish Audit-Report thereof (in the same way, as is done of other Government funds), from time to time, until the disposal of this writ petition, otherwise the entire nation and the petitioner shall be put to great hardships and irreparable loss

The SLP is filed by Advocate Aldanish Rein, drawn by Advocates Rajesh Inamdar, Shashwat Anand, Jawed Ur Rehman, Ashutosh Mani Tripathi, Syed Ahmed Faizan, and Mohd. Kumail Haider. It is settled by Senior Advocate Devdatt Kamat.

[Case Title : Divya Pal Singh v. Union of India SLP(C) 11729 of 2021]

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