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PM Cares Fund and RTI

PM CARES FUND AND RTI – CONSTITUTIONAL PERSPECTIVE

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Humanity has been shaken by the global pandemic of coronavirus. The pandemic initially halted the world to a standstill but there is always a saying that life never stops and keeps moving. In these times of crisis, the economic structure has been shaken and several state governments, as well as the central government, faced the economic crisis. The Constitution of India provides legal ground for the creation of the Contingency Fund of India by parliamentary statute. Through Article 267(1) there can be the existence of the Contingency Fund of India at the centre and through 267(2) there can be a Contingency Fund of state. In spite of the Contingency Fund of India, statutory National Disaster Response Fund (NDRF) and Chief Minister’s Relief Funds there is in existence the Prime Minister National Relief Fund (PMNRF).   

The Ministry of Corporate Affairs prior to the 3-days of the announcement of nation-wide lockdown issued a notification informing of the creation of Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund, or the PM CARES Fund. 

The government set out the objectives of the fund as: –  

  1. To undertake and support relief or assistance of any kind relating to a public health emergency or any other kind of emergency, calamity or distress, either man-made or natural, including the creation or up-gradation of healthcare or pharmaceutical facilities, other necessary infrastructure, funding relevant research or any other type of support.
  2. To render financial assistance, provide grants of payments of money or take such other steps as may be deemed necessary by the Board of Trustees to the affected population.
  3. To undertake any other activity, which is not inconsistent with the above Objects.

The question which prominently subsides as to why the government deemed it necessary to have another separate fund even in the presence of funds like The Prime Minister National Relief Fund (PMNRF) which sought to have similar objectives.

Objections Raised By The Opposition Against The PM Cares Fund 

  1. The opposition roared upon the government on the creation of the fund in the presence of PMNRF which is already set out to meet out unprecedented emergency situations and asked them to transfer all the funds from PM CARES to PMNRF.
  2. The opposition slams the government on its incapability to use the PMNRF funds which are already subsisting in it.
  3. The government was also questioned why it did not set out the independent auditor to audit the fund and so the intentions of the government were under scrutiny. 

The opposition kept criticizing but the government did not pay any heed to it and then certain RTIs were filed. In these RTI applications, the opposition wanted to know and disclose the information before the nation regarding the number of funds collected. Another intent behind the filing of RTI applications was to know how much amount from the fund is going to be disbursed and where it is going to be disbursed. The government did not disclose any information before the applicants and issued a statement that PM CARES is a public charitable trust and is not a “public authority” under section 2(h) of Right to information act, 2005 so the fund is not under the ambit of RTI Act.

This certainly triggered the conflict between the government and information seekers. Now, who raised certain objections against the PM CARES fund on not coming under the ambit of RTI Act which is:

  1. The PM CARES fund was set up by the Government of India who has full control over it. Prime Minister Narendra Modi is the ex-officio chairperson of the fund along with the trustees include Home Minister, Finance Minister, and Defense Minister.

Section 2(h) of RTI act states that “public authority” means any authority or 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 State Legislature; 

(d) by notification issued or order made by the appropriate Government,

And we come to know about the fund through a notification of the Ministry of Corporate Affairs. Also, the information is held by the PMO which is a public authority therefore it is obliged to be under the ambit of the RTI Act.

  1. The Usage of the domain name “gov.in”

The guidelines set out by the government clearly states that the domain name “gov.in” should be used by public authorities.

Apex offices like President of India or the Prime Minister’s Office.

Government Ministries or Departments

State and Union Territory offices

India’s Parliament

Judicial bodies and 

All other legislative bodies. 

Clearly the fund website which is “https://www.pmindia.gov.in” does not fall under any criteria but still manages to get the domain name.

  1. The government machinery was used to promote the PM CARES fund
  1. Why there was tax exemption relief to PM CARES donations.

Donators would be eligible for a 100% tax deduction. 2 Days prior to the announcement of PM CARES fund the government through an ordinance in Income Tax Act to section 4 chapter 3.

  1. The PM CARES fund is eligible for CSR funds.

Clause 2 of the notification issued by the Ministry of Corporate Affairs states that any contribution made to the PM CARES Fund shall qualify as CSR expenditure under the Companies Act 2013.

The public sector units did donate huge amounts to PM CARES and which are under the ambit of the RTI Act. Any contribution by any PSUs does come under the RTI Act the why not PM CARES. Not only the PSUs but also certain ministries among which the Ministry of Defense donated the one-day salary of its employees approximately 500 crores.

The NGO ‘Centre for Public Interest Litigation (CPIL)’ represented by senior advocate Dushyant Dave and Prashant Bhushan moved to the Supreme court on the ground that rules were tweaked by the government to favour PMCF over NDRF. The Supreme Court after hearing the petition rebuked the petitioner for framing misconceived and false allegations against the government of India. The bench rejected the plea that the fund lacked transparency and will not be audited by the Comptroller and Auditor General of India. The apex court further rejected the plea seeking the transfer of PMCF funds to NDRF. The apex court also rejected the last plea of petitioners that there should be a formulation of a fresh National Disaster Plan.

One must also adhere to the fact that PMNRF is not under the ambit of the RTI Act and the same is under scrutiny. The PIL was filed by Aseem Takyar before the Delhi High Court that whether the PMNRF comes under the ambit of the RTI Act or not which is still not disposed of. The bench of Delhi High Court comprising Hon’ble Mr. Justice S. Ravindra Bhat and Hon’ble Mr. Justice Sunil Gaur had different opinions and so the matter had been referred to the acting Chief Justice. 

Conclusion

One does feel that mention of the Contingency Fund of India is merited when the issue concerns the establishment of the PM CARES fund. Article 267(1) of the Indian Constitution, provides legal ground for the formation of the Contingency Fund of India by parliamentary statute. This fund, the constitution prescribes, shall be at the President’s disposal as a recipient of sums (said sums to be determined by law in parliament) that shall be used to meet unforeseen expenditure (such expenditure to be authorized by the parliament under articles 115 & 116), which is precisely what the present health exigency has demanded of the Indian government. Besides, article 267(2) provides the framework for the establishment of contingency funds at the state level which shall be at the disposal of the governor of the state. Therefore, one does believe that the multiple pre-existing funds and the cumulative deposits in such funds could have been used to manage the crisis and that the establishment of a new fund, which, rather curiously, does not come under section 2 (h) (d) of the RTI Act, despite all conditions and ex-officio involvement of concerned Members of the Parliament providing for such, makes it patently clear that something is indeed amiss. The real intent and purpose can only be achieved when there is an articulate account of analysis in the broadest sense and thereby it is necessary not to limit the research and analysis to a narrower ambit. To bring change about anything or process there should be the reason and need of the hour to transform the existing state into a new dynamic one and so there is an absolute necessity not to restrict to just one point i.e. the lack of transparency could be a potent tool for defrauding the benevolent contributors of the fund. This makes one feel that ghastly and depraved act of engaging all time and efforts to create some sort of delay for the help to reach its destination which the present government has ascended to push upwards so that the pandemic does not pull the country years back from its current position and just sink the efforts of our frontline corona warriors who have dedicated themselves for the nation. But in the end, I would like to urge reasonably capable and informed citizens and activists to definitely put efforts to bring out certain discrepancies before the nation if any regarding the PMCF and its mechanism of disbursal after these hard times.      

Endnotes: 

  1. Article 267 of the Constitution of India
  2. http://www.mca.gov.in/Ministry/pdf/Circular_29032020.pdf
  3. https://www.pmindia.gov.in/en/about-pm-cares-fund/
  4. https://registry.gov.in/Gov.In%20Guidelines.pdf
  5. https://www.pmindia.gov.in 
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Madhav Gupta

Student, Galgotias University

Passionate law student and research analyst, acquiring skills in corporate law. For any Clarifications, feedback, and suggestion, you can reach him at madhavgpt101@gmail.com

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