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New Delhi: The Union government and the Prime Minister’s Office (PMO) have told the Delhi high court that the Prime Minister Citizen Assistance and Relief in Emergency Situation Fund (PM-CARES Fund) is not a fund of the government of India, the Indian Express reported on Thursday, September 23.
The prime minister is the ex-officio chairman of the trust, and three cabinet ministers are its trustees.
A plea filed by lawyer Samyak Gangwal through advocate Ayush Shrivastava in the high court sought for the PM-CARES fund to be declared as the “State” as per Article 12 of the Indian constitution. Another plea filed by Gangwal had also sought for the fund to be designated as a “public authority” as per Section 2 (h) of the Right to Information (RTI) Act.
Article 12 of the constitution says that the “State” includes, “the government and parliament of India and the government and legislature of each of the states and all local or other authorities within the territory of India or under the control of the government of India.”
The PM-CARES fund was set up in March of last year to raise funds to support citizens who were hit by the COVID-19 pandemic. Since its inception, it has received vast amounts of money through donations and has seen criticism from various corners regarding the lack of transparency in its operation.
Earlier this year, Aayushi Jain had written for The Wire, that in its very first reply to an RTI request for information on the Fund, the Prime Minister Office (“PMO”) refused to provide any information on the grounds that the fund was not a Public Authority under Section 2(h) of the RTI Act. All the subsequent RTI applications were also rejected on the same grounds.
The RTI Act designates a “public authority” as any authority, body or institution of self-government established by the constitution, any law made by parliament, any law made by state legislature or through any notification or order made by the appropriate government. The Section states that it includes bodies “owned, controlled or substantially financed” by the government” or a “non-government organisation substantially financed, directly or indirectly” by funds provided by the government.
The Wire had reported shortly after the Fund was announced on how file notings accessed by RTI activists show that the Ministry of Corporate Affairs (MCA) had declared that the fund was set up by the Union government on the day the fund was created, thus making it a public authority under the ambit of Section 2(h) of the RTI Act, 2005.
However, the Companies Act itself was retrospectively amended two months later on May 26, effectively nullifying the MCA’s stated position on the PM-CARES Fund.
The government’s response in the plea being heard was undersigned by Pradeep Kumar Srivastava, an under secretary at the PMO.
In the affidavit submitted on September 14, the government told the bench of Justices D.N. Patel and Jyoti Singh that the fund was set up as a charitable trust and was not created under the constitution or any law made by the parliament or state legislature, the Hindustan Times reported.
Srivastava told the court that the fund is made up of “voluntary donations from individuals and institutions” and thus, the government is not at liberty to disclose any third party information. He also noted that funds under the trust do not go into the Consolidated Fund of India.
On the issue of transparency, the affidavit noted that the trust’s funds are audited by a chartered accountant from a panel prepared by the comptroller and auditor general of India (CAG). Further, it noted that an audit report and details of the utilisation of the trust’s funds are uploaded to the PM-CARES website to “ensure transparency”.
The affidavit said that the PM-CARES fund is not a “public authority” under the RTI Act and thus called for Gangwal’s petition to be dismissed.
Gangwal’s petition was listed to be heard on Wednesday, September 22, but was not taken up. The matter has been listed now for hearing on September 27.