PM Cares Fund - Not Public Authority ??

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On March 28th 2020, Prime Minister Narender Modi announced the establishment of a National fund Prime Minister Citizens Assistance and Relief in Emergency Situation (PM CARES) with the primary objective of dealing with any kind of emergency or distress for instance COVID-19. Following which, on 31 March 2020, the Government of India brought out a Taxation and Other Law (Relaxation of Certain Provisions) Ordinance 2020, which was aimed at extending the deadlines of tax filing and providing 100% tax rebate for any contribution to PM CARES fund through Section 80(G) of Income Tax Act 1961.

Intending to take relief assistance through financial means, the Prime Minister has publicly requested and encouraged citizens and entities to generously contribute to PM CARES. As per PM CARES web portal, the fund is managed as a Trust by the Prime Minister, Minister of Finance, Minister of Home with Minister of Defence as ex-officio trustee with a provision of appointment of three eminent members as trustees in pro bono capacity and the burden of managing PM CARES entirely rests on these trustees.

The corpus collected, according to the public details, stands at Rs. 9677.9 Cr. (U.S. $ 1.2 Billion) and this data is scraped from the publication of the Press Information Bureau (PIB). The fund has donors ranging from individuals to industries, corporate entities and government agencies. The fund is also funded by bail bonds as security given by accused in criminal offences (Jharkhand, Madhya Pradesh, Patna).

As of May 13th 2020, Rs. 3100 Cr. of the PM CARES funds has been allocated for Purchase of Ventilators (Rs. 2000 Cr.), providing for Migrants (Rs. 1000 Cr.) and vaccination infra (Rs. 100 Cr.).

An RTI filed by Harsha Kandukuri, a student of the Azim Premji University has been denied by the Prime Minister Office (PMO) citing that the fund does not fall in the ambit of Section 2(h) of RTI Act 2005. In a somewhat similar RTI filed by activist Vikrant Tagoda with PMO seeking the transactional details of PM CARES, the same reason was provided and an excerpt of the reply included “indiscriminate and impractical demand under RTI act for all dry and sundry information would be counterproductive as it adversely affects the efficiency of administration as it bogged down on non-productive work of collecting and furnishing information”. A subsequent RTI by Law student Sandeep Pamarati of Sri Vijayanagar Law college Anantapur was also disposed under 2(h) of RTI Act.

Ambit & Scope of 2(h) RTI Act 2005

Section 2(h): “Public Authority” means any authority or body or institution of self-government established or constituted

By or under the Constitution
By any other law made by Parliament
By any other law made by State Legislature;
By notification issued or order made by the appropriate Government

It also includes any

Body owned, controlled or substantially financed
Non-Govt Organizations substantially financed

Directly or indirectly by funds provided by the appropriate Government.

Section 2(a) of the Act

Appropriate Government means in relation to a public authority which is established, constituted, owned, controller or substantially financed by funds provided directly or indirectly

i) by the Central Government or the Union Territorial administration, the Central Government;

ii) by the State Government, the State Government

The mechanical and complete abnegation of its duty by the PMO is reflected in the nature and content of the replies.

To begin with, Articles 226 and 227 of the constitution allow for the creation of a Consolidated Fund of India and Contingency Fund of India. The former includes the funds that are repositories of all the revenue of the government (borrowing, tax, deposits, remittances – Consolidated fund ) and the latter is provisioned to be handy at the time of National emergency and as per Comptroller Auditor General, the current balance of Contingency Fund is Rs. 8000 Cr.

There already exists a Prime Minister Relief Fund under the control of the PM with Rs. 3800 Cr. unused as on December 2019 along with Member of Parliament Local Area Development funds (MPLAD) established in 1993 which has around Rs. 7800 Cr. unused balance. All the above-mentioned funds — Consolidated fund, Contingency fund, Prime Minister National Relief fund, MPLADS — have parliamentary oversight that includes reports of the transactions (inflow and outflow). Each of these accounts also has adequate machinery to monitor the allocation of funds and track the progress of the initiatives which are funded from these funds. These funds also boast transparency and the information is available on the respective public authority under Section 4 of the RTI Act.

The creation of PM CARES and its astronomical growth in deposits of public money brings in a lot of questions such as ‘Why do we need an extra-constitutional fund like PM CARES?’ ‘How effectively is it being utilised for the betterment of the society and coming out of this difficult situation?’.

Francis Bacon said, “information is the Oxygen of democracy, it invigorates wherever it percolates”. PM Modi’s appeal to Indian citizens has brought an avalanche of money into the fund and the information on working of PM CARES is essential due to its enormity. As of now, the fund has no executive, parliamentary or judicial oversight and no clear cut rules of usage and a thick layer of obscurity shrouds PM CARES and leaves much to be answered.

PM CARES Fund is a National Fund that is administered by the PM as an ex-officio chairman and it has come into existence through an ordinance and hence it comes under the ambit of 2(h)(d)(1) – body owned, controlled and substantially financed by appropriate government (in this case the Central Government). In Geetha V. CPIO (famously known as BCCI case), it was held that the Doctrine of fairness and good faith obligates the board, which controls the sport of cricket, to exercise enormous public functions as a public authority and they cannot act arbitrarily, whimsically or capricious and BCCI actions should be judged and view by higher standards. Thus, with its enormous corpus, PM CARES should come out clean by subjecting itself to demands of the RTI Act because it was exclusively made to mitigate disaster scenario.

In Sukdev v. Bhagatram Singh Singh Raghuvanshi, if a given function is of such importance and so closely related to government function to be classified as a government agency, even the presence or absence of state financial aid might be irrelevant. Matters of High public interest or performing public functions are by virtue of Nature of functions performed by government agencies. PM CARES funds are used to ameliorate the public trauma and have the highest public interest and thus are liable to be open to public scrutiny.

Lastly, citing Justice Mathew in State of UP v. Raj Narain, “people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know particulars of every public translation in all its bearing. Their right to information though not absolute is a factor which should make one wary when secrecy is claimed for transactions”.

India is a democracy and follows the rule of law along with checks and balances and its citizens have the right to know about the PM CARES fund.

Raghav, Osmania University Law student

raghav30@gmail.com

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