Is PM CARES Fund a Public authority under the RTI Act?

INTRODUCTION

When the whole world is grappling with introducing measures to cope up with the novel coronavirus pandemic, India has not been left untouched by a rising number of death tolls day by day. The government is encouraging mass production of PPE kits with the imposition of lockdown in the affected areas. On March 28, Hon’ble Prime Minister Mr Narendra Modi had introduced “Prime Minister Citizen’s Assistance and Relief in Emergency Situations (PM CARES) to invite voluntary donations to contain the spread of COVID-19 crisis. But it raised serious concerns related to transparency and accountability of the incumbent government as similar fund also existed before it. Moreover, Prime Minister Office (PMO) has also denied sharing information on PM CARES fund citing that it does not come within the purview of “public authority” under the Right to Information Act, 2005. A petition challenging this order has been also filed in Delhi High Court to declare the fund as a public authority. This paper intends to provide insights on the legalities related to funding focusing on liberal interpretation by the revered courts to classify PM CARES as a public authority or not.

LEGAL NUANCES

The denial by PMO also raises series of questions regarding the transparency and allocation of funds collected through voluntary contributions. If the government is not controlling it, which authority will assume the responsibility for the misuse of public funds also raises genuine concerns. According to Section 2(h) of the Right to Information Act, 2005, a public authority is defined as any authority or institution constituted or established under

a) the constitution;

b) by any law enacted by the Parliament;

c) by any law enacted by the State legislatures;

d) by any order or notification issued by the government.

e) body controlled, owned or substantially financed by the government funds

f) Non-Governmental Organizations substantially financed by the government.

Looking at the composition of trustees and members, PM Narendra Modi has been appointed as ex-officio chairman with four cabinet ministers as its trustees. The fund does not fall under the scope of a, b, c and f because it has not been duly constituted under the Indian constitution or enacted by the Parliament. Moving to e), in Delhi High Court judgment of “National Stock Exchange of India Limited v. Central Information Commission” the court had ruled that controlled, owned or substantially financed are separate and distinct. Even if any authority fulfils any of three conditions, it will be declared as a public authority. In the researcher opinion, PM CARES fund can be classified as public authority as the government exercises substantial control over its functioning.

The term controlled needs liberal interpretation to include PM cares under its purview as the government refused to accept accountability of fund deposits. In a landmark judgment of “Thalappalam Service Coop. Bank Ltd. v. the State of Kerala”, the court has decided that mere supervision or regulation by the government will not include anybody under the public authority as substantial control as a necessary precondition needs to be satisfied. Also, PM has the sole authority in selecting the Board of Trustees who play a significant role in the disbursement of funds. Also, persons associated with this fund act as constitutional functionaries and provide an impression of public office. They exercise their sole discretion in affairs and management of the trust concerning collection and distribution to states according to their requirements. Also, advertisements appealing for contribution to the PM CARES fund have been made through government agencies from their budgetary allocated funds. Government employees are also mandated to contribute their one-day salary to fund which also infringes their fundamental right to choose to spend their hard-earned incomes.

The Prime Minister Office had appealed for making voluntary contributions under the pictorial representation of PM Narendra Modi which provides sufficient proof for the substantial control of the government. Recently, PMO has been also selected as a head office for the trust with two PMO officials administering the funds. The use of the State Emblem of India on the website of the PM CARES portal also gives an impression of public office as under the State Emblem Act, 2005 only governmental authorities wield the exclusive power to use it. Moreover, Gov. in domain used on PM CARES website is solely regulated and allocated by the Ministry of Electronics and Information Technology only. All these above-mentioned points suggest deep and pervasive control of the government in the functioning of the PM CARES fund.

PRIME MINISTER NATIONAL RELIEF FUND (PMNRF) – A PARALLEL COMPARISON

The similar characteristics and objectives sought between the recently launched PM care fund and already established PMNRF raise serious concerns about the inception of the former one when a similar fund existed in the first place. The PMNRF was established more than 70 years ago with the sole purpose to cater to emergencies, natural calamities like earthquakes, cyclones, and floods with coverage of emerging medical expenditures. It comprises of different members including Prime Minister, Finance Minister, President of Indian National Congress, and an industry and commerce representative. This ensures greater transparency in contrast to the PM CARES fund where the PM has the sole authority in the selection of members. Moreover, both have similar traits in the form of exemption from income tax, no budgetary support, and permission for foreign contributions with honorary service of people involved in the management of these trusts. Also, both these trusts are audited by the same independent auditors based in Delhi. With such a level of similarities, the introduction of another identical fund poses serious objections to the intentions of the incumbent government.

WAY FORWARD

“Sunlight is the best disinfectant”, this quote has been cited by many Supreme Court judges for advocating transparent and accountable governance. But PM CARES fund contrasting to their opinions prefers darkness over sunlight as PMO has denied disclosing information related to the fund. Transparency plays a significant part in enhancing the creditability of any institution. The absence of rationale behind the creation of the PM CARES fund when another PMNRF fund was in existence since 1948 poses serious questions which are left unanswered. It is high time that PM CARES should be declared as public authority under the RTI Act due to achieving unambiguity and limpidness in the functioning and management of trust funds.

- LEGAL HUMMING

( CO-AUTHOR PRINCE CHANDAK )