The Supreme Court has been moved in a Review Petition filled against its August 18 judgment where the Hon'ble Supreme Court disposed of disposing of a PIL filed by the Centre for Public Interest Litigation  seeking to transfer the funds from PM CARES to National Disaster Response Fund (NDRF) created under the National Disaster Management Act, 2005.

Dismissing the plea, the Bench 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 is free to transfer the funds to NDRF as it deems appropriate and that individuals are at liberty to donate to NDRF.

The review plea under article 137 has been filed by petitioner MR.  Mukesh Kumar, an intervenor in the original proceedings.

"As an intervener, the petitioner has raised an issue regarding the competency of the Council of Ministers for creating PM CARES Fund. 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 Ministers 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, the petitioner submitted." 

Not only PM cares fund, but also creation of the PMNRF and CMRF are also unconstitutional, unless the same were created by way of an 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, he asserted.

The counsel for the petitioners also alleged that the competency to create PM CARES Fund is overlooked or ignored in the impugned Judgment dated 18.8.2020. 

The Review Petition has been filed on the grounds of error apparent on the face of record.

The moot question arises as to whether voluntary contributions can also be classified within the meaning of Revenue to the Government? he further submitted.

The petitioner has claimed that the present review petition was moved bona fide and to serve the larger public interest.

The petition also alleged that the Government is drawing its powers for its revenues through taxes, duties, cess, levies or fees under Articles 264 to 291 (Chapter I, Part-XII), Borrowings under Articles 292 & 293 (Chapter II, Part-XII), and Property, Contracts, Rights, Liabilities, Obligations and Suits under Articles 294 to 307 (Chapter III, Part-XII) of the Constitution of India.

There is no provision under the Constitution empowering State to collect voluntary contributions, even though public at large has been willingly contributing funds voluntarily for national or local social cause.

Reference was made to the Delhi High Court decision dated 23.5.2018, where Hon'ble Mr. Justice Sunil Gaur had 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 pleas also intends to make a 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.

In the light of above, the petitioner asserted that the creation of PM cares fund is illegal, unconstitutional and hence, impugned judgement dated 18.8.2020 is not sustainable.

This news  has been reported and prepared by Ms. Suheena Khan & reviewed by Ms. Samreen Ahmed, Research Assistant, Research & Innovation Department, MyLawman.