The PM CARES Fund was created on 28th March 2020, following the corona pandemic in India. The fund, as per its official website, is a public charitable trust which has been set up keeping in mind the need for having a dedicated fund with the primary objective of dealing with any kind of emergency or distress situation, like posed by the COVID-19 pandemic and to provide relief to the affected. The Prime Minister of India is the chairman of the fund and the other trustees include the Minister of Defence, Minister of Home Affairs, and Minister of Finance, incidentally all from a single political party.
PM CARES Fund has been in the news since its inception and the debate is unlikely to get settled anytime soon. The stakeholders opined and questioned the need for a separate fund when India already had an established Prime Minister’s National Relief Fund, a fund which was more representative in nature as the same was originally managed by a committee which included the Prime Minister and his deputy, the Finance Minister, the Congress President, a representative of the Tata Trustees and an industry representative nominated by FICCI. However, in 1985, the committee entrusted the entire management of the fund to the Prime Minister, who currently has sole discretion for fund disbursal. A joint secretary in the PMO administers the fund on an honorary basis. The News Reports also suggest that the PMNRF had an unused corpus of Rs.3800 Cr. as of 2019. However, the need for a duplicate fund is probably the most inconsequential issue attached with the PM CARES fund. The actual quandary lies with its transparency, accountability, purpose, and inclusion.
Series of Litigation
The Supreme Court has recently dismissed two PILs questioning the legality of the constitution of the PM CARES Fund by saying that the petitions were misconceived and had political colour. A petition filed by Member of Parliament Ms. Mahua Moitra was also withdrawn as the Apex Court opined that the issue warrants a debate in the Parliament. The question raised was why the CMs Relief funds were excluded from receiving contributions under Corporate Social Responsibility while PM CARES was allowed the same. Another PIL filed before the High Court of Delhi which sought to bring the PM CARES Fund under the ambit of the Right to Information Act was dismissed by the HC saying that a similar plea is already pending in Karnataka and therefore the court is not inclined to hear the matter. Another petition before the Delhi High Court was declared dismissed as withdrawn as the petitioner approached the HC without preferring an RTI application in this regard.
The Nagpur Bench of Bombay High Court is presently hearing one petition seeking CAG Audit of the PM Cares Fund and also transparency in terms of the amount collected and how the same have been utilized. The Union of India vehemently opposed and sought dismissal of the petition on the ground that a similar petition against setting up of the PM CARES fund was dismissed by the Supreme Court. The bench, however, noted that the petition before it was seeking different reliefs and directed the Union government to file its reply in the matter. The matter is presently sub-judice.
Not a Public Authority
The legal tangle began when the Prime Minister’s Office in a reply to an RTI filed by a law student stated that the PM CARES Fund is not a public authority under Section 2 (h) of the Right to Information Act, 2005, and therefore the information sought in the RTI application cannot be provided. Another RTI application had also been refused by the Prime Minister’s Office citing a Supreme Court observation that “indiscriminate and impractical demands under RTI Act for disclosure of all and sundry information would be counterproductive”. To the utter shock and dismay, the fund which has the Prime Minister itself as ex-officio chairman along with three senior cabinet ministers as ex-officio trustees has tried to escape the questions and denied to be called as a public authority.
As per the RTI Act, a public authority means any authority, body or institution of self-government established or constituted a) by or under the constitution; b) by any other law made by parliament; c) by any other law made by the state legislature and d) by a notification issued or order made by the appropriate government. It also includes “body owned, controlled or substantially financed; non-governmental organization substantially financed directly or indirectly by funds provided by the appropriate government”.
The High Court of Delhi in the National Stock Exchange of India Limited v/s. CIC matter held even if one of the three conditions, i.e. owned, controlled, and substantially financed are satisfied by a body, it would be sufficient to declare it a public authority. At the outset, by virtue of its name, composition of the trust, control, usage of the national emblem, and the government’s domain name, the fund seems to be substantially controlled by the government. However, if the government is emphasizing that the fund is not a public authority, does it mean to say that it is not being controlled and supervised by it! If that is the case, it gives a serious blow to the trust and confidence of millions of people who have donated to this fund in response to a single appeal made by the Prime Minister himself. By stating that it is not a public authority and not covered under the RTI Act, the government, therefore, has raised avoidable doubts regarding the transparency and functioning of the fund.
Use of National Emblem and Government Domain
Any advertisement of the PM CARES Fund contains references to the office of the Prime Minister, uses PM Modi’s images, and also suggests the patronage of the government of India as its website is cross-linked to the official website of the Prime Minister of India. In addition, the official website of the PM CARES Fund is hosted using the official “.gov.in” domain, which is a government domain, and the use of the same is allotted and regulated by the guidelines prescribed by the Ministry of Electronics and Information Technology regulations.
The State Emblem Act, 2005 explicitly prohibits the use of the National Emblem for any professional or commercial purpose unless its use by any authority is notified by the government under this Act. The use of National Emblem of India on the official website, its logo, and the use of government domain, therefore, is sufficient ground to give an impression that the PM CARES Fund is a public office.
Why not CAG?
The CAG is a constitutional post under Article 148 of the Constitution with safeguards against removal or even altering his/her terms of service adversely on like grounds as a Judge of the Supreme Court. The CAG of India is charged with auditing all receipts and expenditures of the Central and state governments, as well as the accounts of authorities substantially financed and controlled by the government. In fact, India has a precedent of having CAG Audit of the private telecom companies, private power distribution companies, and also private toll bridge companies. A CAG audit brings with it an added advantage of transparency and inclusiveness.
The most disturbing and unsettling facet of the PM CARES Fund is that the same will be audited by an independent auditor and not by the CAG of India. The new reports suggest that a Delhi-based chartered accountancy firm SARC & Associates has been appointed for a period of 3 years to audit the PM CARES Fund.
As per the news reports, a whopping corpus of more than Rs.10,000 crore has been so far collected in the PM CARES Fund, which enjoys the authority of reputation offered by the Prime Minister himself. The majority of the contribution came from corporate houses, public sector undertakings, and the central ministries and departments. The central public sector enterprises under the ministries of power and new and renewable energy had contributed Rs.925 crore while public sector oil companies ONGC, India Oil Corporation, and Bharat Petroleum have contributed over Rs.1000 crore to the PM CARES Fund to help in the fight against the pandemic. The Prime Minister’s Office accepts payments towards this fund, as it is clearly mentioned in their website that cheque or demand draft drawn in favour of ‘PM CARES Fund’ can be sent to the Under Secretary (Funds), Prime Minister’s Office. It would not be out of place to mention that under Article 266(2) of the Constitution, “public money received by or on behalf of the Government of India”, which is not on account of revenue from taxes, duties, repayment of loans and the like should be credited to the Public Account of India.
All the factors, including nature and character of the fund, conditions under which the fund has been set up, the contributions made towards the fund, deduction, and deposit of salaries of government employees to the fund, the manner in which donations have been solicited by the Prime Minister himself as a part of policymaking, are sufficient grounds to give the PM CARES Fund an image of a public authority/ office. It is therefore a bare minimum expectation that the fund be audited by the CAG, which would only make it more transparent, enhance its credibility, and instill public faith and confidence in the fund.
Legal Position
The Comptroller and Auditor General’s office has clarified that it wouldn’t audit PM CARES Fund as it is a charitable organization and based on donations from individuals and organizations. Reliance is put on the argument that the Prime Minister’s National Relief Fund is also not audited by CAG but by an independent auditor only.
The question of the public nature of a similarly placed, Prime Minister’s National Relief Fund was first raised in the matter of Aseem Takyar v/s. Prime Minister’s National Relief Fund. In 2018, a division bench of the Delhi high court was split on the issue of whether the Prime Minister’s National Relief Fund is a public authority under the RTI Act and is liable to the disclosure of information or not. The matter was thereafter forwarded to the then acting chief justice of the HC for an opinion. The matter is pending and unsettled.
My Take
In a historical and unanimous verdict in September 2018, a three-judge bench of the Supreme Court allowed live streaming of court proceedings in order to bring more transparency and accountability into the judicial system. Citing “Sunlight is the best disinfectant”, the highest court observed that the dissemination of information in the widest possible sense is necessary to impart transparency and accountability to any process.
PM Modi was given a clear mandate in the parliamentary elections of 2014. In its first cabinet meeting itself, the Government resolved to form an SIT to unearth black money hoarded abroad. Though it was done in compliance with the directives given by the Supreme Court, it was still a welcome and appreciable move considering the importance and priority of the matter by given by the government. It was a statement, loud and clear, by the newly appointed Prime Minister that he was very much serious about his elevation slogan “achche din aayenge”. He provided a ray of hope towards curbing corruption and bringing more transparency and participation in the governance. As it is correctly said that transparency is the key to credibility, and credibility, in turn, enhances trust in any institution.
The opaqueness and in access to the PM CARES Fund, however, has given a severe blow to the clean governance campaign of the government. By denying the PM CARES fund an identity of a public authority, keeping the same beyond the purview of RTI, and avoiding a CAG audit of the fund, the government may start losing the trust which it enjoys in the eyes of a common man. As a voter, taxpayer, and a contributor to the PM CARES Fund, we feel cheated and offended when the government tries to create an unnecessary veil to this fund. Before the matter comes up before the judiciary and the matter is adjudicated, it is expected from the government to come up with clean hands on the issue and allow the RTI applications and a CAG audit of the PM CARES Fund. This will further enhance the public trust and confidence, not only to the fund but also to the Prime Minister’s office. SHARING is CARING is one of the very first and fundamental lessons which we all as a toddler learn in our pre-school. Hope our beloved Prime Minister remembers and implements the same.
This Article is Written by Mr. Ravi Shandilya.
The writer is an advocate having more than a decade’s experience as an in-house counsel, advisor, and litigator. The writer is a law enthusiast and a perpetual learner.
Views are personal and belong solely to the writer. By no means, the views are intended to hurt any religious, ethnic, social, political, and intellectual sentiments of any individual and/or institution.
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