Why PM-CARES Is a 'Government Fund' and Well Within RTI Purview

The Union government submitted before Delhi high court that PM CARES Fund is “not a fund of Government of India and the amount does not go in the Consolidated Fund of India”.

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While there is enough information already in the public domain to assert that PM-CARES Fund (Prime Minister’s Citizen Assistance and Relief in Emergency Situation Fund) is controlled by the Government of India, the Union government still wants to maintain that it is not. By insisting that it is a “public charitable trust” not related to government, the Narendra Modi government has made it clear that it fears public scrutiny.

Among evidence to suggest why the PM-CARES Fund is one established and actively promoted by the Government of India are the following.

  1. Indian embassies abroad have been roped in for promoting the Fund.
  2. It has been given exemption under the Foreign Contribution (Regulation) Amendment Act (FCRA).
  3. In the capacity of the Union government, it has reached out to and received contributions specifically for the Fund from corporates and public sector undertakings.
  4. Thousands of crores raised in the name of Fund have been spent on purchasing ventilators, oxygen cylinders, vaccines, among other things in the fight against COVID-19 using government machinery and resources.

Centre’s doublespeak

The Union government recently submitted before the Delhi high court that PM-CARES Fund was set up as a charitable trust and “it was not permissible to disclose third party information” pertaining to it.

The submission was made in response to a petition filed by Samyak Gangwal who demanded that the PM-CARES Fund be declared as ‘The State’ under Article 12 of the constitution. The petition has expressed dismay that despite the fact that the fund was set up by the Prime Minister and has him and other Union ministers as trustees, the government has claimed that it has no control over it.

On Wednesday, October 6, senior advocate Shyam Divan, appearing for the petitioner, referred to several instances where the vice-president, defence ministry and top functionaries of the government in their communication and appeals to employees and the public at large called the Fund a “national fund”, “set up by the Government of India” to combat distress situation.

Appearing for the Union government, an under-secretary at the PMO submitted that “irrespective of whether the trust is a “State” or other authority within the meaning of Article 12 of the Constitution of India and or whether it is a ‘public authority’ within the meaning of section 2[h] of Right to Information Act, Section 8 in general and that of provisions contained in sub section [e] and [j], in particular, of the Right to Information Act, it is not permissible to disclose third party information”.

Also read: ‘PM-CARES Not a Fund of Government of India’: Union Govt tells Delhi HC

On the other hand, the Union government had submitted in the past that the Fund is a body owned by, controlled by and established by the Government of India”.

Reacting to this doublespeak and attempts to not let the Fund come under the RTI Act, activist Commodore Lokesh Batra (Retd.), who had filed several applications to seek information about the contributions to and the spending through the PM-CARES Fund said, “The government machinery and manpower have been used for spending money through it.”

Centre’s patronage 

The government’s reluctance to reveal any information about the Fund under the RTI Act has been called into question, as the Fund, created on March 28, 2020 for the purpose of extending assistance during the Covid-19 pandemic, has been promoted by the Government of India and received huge donations.

The Union government has argued that the trust functions with transparency and its funds are audited by an auditor who is a chartered accountant from the panel prepared by the Comptroller and Auditor General of India (CAG).

Also read: Here’s a List of the Most Significant Contributions to the PM-CARES Fund

“To ensure transparency, the audited report is put on the official website of the trust along with the details of utilisation of funds received by the trust,” its reply in the court said, adding that all donations received by the trust were through online payments, cheques and/or demand drafts.

The PM-CARES Fund had earlier also released a copy of its trust deed on its website in December 2020, as per which, it was not created by or under the constitution or by any law made by the parliament.

With questions being raised around the spending of funds through PM-CARES, an evasive Union government has repeatedly insisted that it does not come under the RTI Act.

Indian embassies’ promotional calls 

Incidentally, Batra filed a large number of RTIs with Indian missions in 27 countries and they revealed that they promoted and publicised PM-CARES on their websites and social media platforms. It was soon after the launch of the Fund that Prime Minister Narendra Modi had on March 30, 2020 also held a video conference on COVID-19 with the heads of Indian embassies across the world.

A ministry of external affairs press release had then stated that he had “advised Heads of Mission to suitably publicise PM-CARES FUND, a public charitable trust, to mobilise donations from abroad”.

Batra’s subsequent queries about the Fund revealed that upon PM’s “advice” all the 27 embassies had publicised PM-CARES when embassies are not supposed to be doing so for charitable trusts.

National Disaster Response Fund ignored

While on the one hand, the government actively promoted PM-CARES, but it did not make commensurate efforts in promoting the National Disaster Response Fund (NDRF), information pertaining to which can be obtained through the RTI Act.

A recent response received by Batra to one of his pleas revealed that in the one year period from July 13, 2020 to July 19, 2021, the contribution received by NDRF from individuals, institutions and through funds raised by invoking corporate social responsibility was only Rs 81,115.

He asked why the government was not interested in publicising contributions to NDRF. This question also assumes significance since certain provisions of the National Disaster Management Act (NDMA) were also invoked by authorities during Covid-19 and since the NDRF contributions can also be used for welfare measures.

PM-CARES out of FCRA purview

Another key area which is being cited by RTI activists while demanding that PM-CARES be brought under the Act is that the government has given special status to the Fund on several occasions in the past.

Also read: PM-CARES Fund Exempted From FCRA, MHA Reveals Under RTI

They have been highlighting how after the amended FCRA came into force on September 29, 2020, in the midst of the pandemic, and despite the government’s claim that it was being made more stringent to provide greater transparency, control and accountability, the PM-CARES was exempted from its purview.

This was done despite PM-CARES being a ‘public charitable trust’ and received foreign funds.

Tax relief and CSR benefit 

Apart from this, the Union government has in the past also made enabling provisions to provide tax exemption relief to donations made to PM-CARES. Within days of the launch of the Fund, the finance ministry had through an Ordinance amended the provisions of the Income Tax Act to provide 100% tax relief to all donations.

Similarly, the ministry of corporate affairs had issued a notification to allow donations to be treated as CSR (corporate social responsibility). The notification had stated that “any contribution made by a Company to the PM-CARES Fund shall qualify as Corporate Social Responsibility or CSR..”. This had paved the way for public sector undertakings to make large donations to PM-CARES Fund.

Claiming that government machinery has all through promoted PM-CARES, Batra also averred as to how the announcement of its creation had clearly spelt out that the Union government controlled it as it said, “The Government of India has set up the Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund.”

Earlier, with respect to the Prime Minister’s National Relief Fund (PMNRF), the then chief information commissioner, Wajahat Habibullah had in 2007 stated in an order: “Since PMNRF information is held by the PMO as a public authority, they are obliged to share it with citizens under the RTI Act.”

As such, it is also argued that PM CARES should be treated similarly and be made answerable under the RTI Act.

PM-CARES took government heft in the name

Meanwhile, there are numerous responses to RTI applications that show that the PM-CARES Fund was utilised for the purchase of vaccines, oxygen and also ventilators during the pandemic. For making all these purchases, the government used its machinery, resources and personnel, just as it does for any other government scheme.

Also read: PMO Restricts MeitY From Revealing How PM CARES Got ‘gov.in’ Domain Name

When it came to ventilators, Batra said first the money was paid through public funds and later reimbursed by PM-CARES Fund. The activist had earlier also questioned how the Fund, despite being a charitable trust, had been given “http://pmcares.gov.in” domain name by the National Informatics Centre.

It was earlier also reported by The Wire that the Prime Minister’s Office (PMO) had restrained the ministry of electronics and information technology (MeitY) from disclosing, in response to an application filed under the Right to Information Act (RTI), as to how the PM CARES Fund, set up at the onset of the COVID-19 pandemic last year, was granted the gov.in domain despite not being a public authority.