PM-Cares Fund Under RTI: Here’s How Both Sides Are Building Their Case

India's judiciary, some of the biggest corporate houses and public sector units have contributed to the PM-Cares Fund. In the first four days of its formation, the fund raised over Rs 3,000 crore. Donating to the fund even became a condition for granting bail in some court cases.Now a fund that's labelled Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund, whose promotional material all carries the photograph of the head of state, Narendra Modi, who is also the chairman of the board of trustees, whose website runs on an Indian government domain, and one that is hailed by all top ministers exhorting citizens to donate to it, would easily be assumed to be a government fund and hence be subject to constitutional oversight and public accountability.Wrong and wrong.Very little is known about the fund's collections and spends, as pointed out by many including retired Supreme Court judge Justice Madan Lokur, who pointed out that the fund has not yet made available its 2020-2021 audit report and that people do not know how the money was being utilised, legal news website LiveLaw reported..We know government employees have donated money. CSR has been diverted towards PM-Cares. But how much money is there under the Fund? We don’t know. How has it been spent? We don’t know. We were told that it would be utilised for tackling Covid, buying ventilators. What actually has happened? We don’t know.Justice Madan Lokur .Efforts under the Right To Information haven't yielded much results either. But one case currently underway in the Delhi High Court is seeking to change that..Samyak Gangwal Vs. Union Of India.Delhi-based Samyak Gangwal filed an RTI application seeking more information on the fund soon after it was formed in early 2020. After being denied information by the Prime Minister’s Office, Gangwal approached the high court seeking release of the information and a declaration that the fund is a ‘public authority’ under the RTI Act. Subsequently, another petition was filed by Gangwal seeking the declaration that PM-Cares Fund is covered by the definition of ‘state’ under the Constitution. Senior Advocate Shyam Divan last week started the arguments for Gangwal. The government on its part filed an affidavit before the first petition was admitted for hearing and has defended its decision that the fund is not covered under the RTI Act..Gangwal’s CaseIn his RTI application, Gangwal had sought information about:A copy of the trust deed of the fund.A copy of the document through which the PM-Cares Fund was constituted.A copy of the file which included the documentation of the decision making process.Though Gangwal was denied the information, the trust deed of the fund has since been uploaded on the PM-Cares website.Gangwal then filed another petition in March this year arguing that the fund is controlled and run by the executive and, therefore, it must also be covered by the constitutional checks and balances on the executive..The Article 12 ArgumentThe Constitution of India does not permit constitutional functionaries to contract out of the constitution by creating and operating private trusts and then claim immunity from constitutional obligations, says Gangwal in his petition. .When applied to constitutional functionaries, every functionary is a public trustee and cannot escape the discipline imposed by the Constitution by creating a cozy, private enclave beyond constitutional scrutiny.Samyak Gangwal’s Petition .The fund is covered by the definition of 'state' under Article12 of the Constitution, he has stated his petition. Article 12 of the Indian constitution defines ‘state’ to mean the central and state governments, parliament and state legislatures, and all local or other authorities within the territory of India or under the control of government of India.The petitioner's case is that the PM-Cares Fund falls under the meaning of ‘other authorities’ in Article 12 and is under control of the central government.He cites earlier Supreme Court judgments to argue that:For a body to be included as other authority under Article 12, it need not be similar to the government or the parliament.Deep and pervasive state control may afford an indication that the corporation is a state agency or instrumentality.If functions of the corporation are of public importance and closely related to government functions, it'll be covered under Article 12.To be included under other authorities under Article 12, a corporation need not be created by a law..Fund Is A Government Entity Pointing to the trust deed, the petition says, it was executed by the Prime Minister of India and other trustees include the defence minister, home minister and the finance minister.The press release announcing the creation of the fund came from the Press Information Bureau and subsequent benefits and exemptions were extended to it which include:Donations being covered under the corporate social responsibility activity and Income Tax exemptions.Purported appeals by Rajya Sabha chairperson, cabinet secretary and few ministries encouraging donations for the fund including from their staff and industry.Administrative and secretarial support provided by the Prime Minister’s Office. An under secretary in the Prime Minister’s Office provides the secretarial assistance to the trust.There is also the use of website domain name, address of the fund as well as the use of national emblem that shows the fund is a government entity established through an order of the Prime Minister.The website of the fund uses ‘gov.in’ domain name and the address is shown as South Block, which is a government building..As per Guidelines issued by the Ministry of Electronics and Information Technology, the use of ‘gov.in’ domain zone is restricted to government bodies only.Samyak Gangwal’s Petition.Similarly, the use of the national emblem on the website is cited by the petitioner as a violation of the The Emblems and Names (Prevention of Improper Use) Act, 1950 if the fund is considered not to be a government entity.These features, the petition argues, make the Fund a government entity. .Fund Should Operate TransparentlyThe petition emphasises that huge donations have been made to the fund by citizens. And so, even if the court does not hold it to be 'state' under the constitution, it should nonetheless direct the fund to operate transparently.Gangwal has sought:Periodic disclosure of audit reports of the fund.Quarterly disclosure of donations above Rs 1 lakh, details on the utilisation of the fund.If the fund is found not to be 'state', bar it from using Prime Minister of India, including its abbreviations. Publicise that PM Cares is not a Government of India fund. And bar it from using the emblem; the gov.in domain. .Solicitor General of India Tushar Mehta is yet to begin his arguments in the case.However, the government filed an affidavit in September last year when the case was limited to whether the fund is a public authority under the RTI Act.The reply affidavit takes the position that the nature of PM-Cares Fund has already been settled by the top court in the case of Centre for Public Interest Litigation. As per the government, the apex court has already held that PM-Cares is a charitable trust consisting of voluntary contributions and does not get any budgetary support or government money.The petitioner’s view on this is that this part of the top court judgment was only observations and the CPIL case was on a different issue.Next, the government affidavit points out that the fund was not created by any law of the parliament or state legislature. The donations received were voluntary and not part of any business or function of the central government..It is further submitted that only unconditional and voluntary contributions are accepted under PM-Cares Fund.Reply Affidavit of September 2020.On members of the Prime Minister’s Office providing secretarial assistance, the affidavit says that a government officer providing secretarial assistance on honorary basis while discharging his official duties can never be a relevant factor in determining the nature of that body.To be clear, this reply was filed in response to whether the fund is a public authority under the RTI Act. The Delhi High Court has adjourned the case for Oct. 21. Senior Advocate Shyam Divan is expected to continue his arguments for Gangwal. Post which, Solicitor General Tushar Mehta is likely to reply on behalf of the government.

PM-Cares Fund Under RTI: Here’s How Both Sides Are Building Their Case

Details on the Samyak Gangwal vs. Union of India case on the PM-Cares Fund.

Choose a plan