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On March 28 2020, Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) was introduced in order to deal with the unsought for and accidental situation posed by the outbreak of COVID-19 pandemic. Prime Minister Narendra Modi is its ex-officio chairman, while Union home minister Amit Shah, Defence Minister Rajnath Singh and Finance Minister Nirmala Sitharaman are its trustees.
The Fund has reportedly received a whooping sum of Rs 6,500 crore in the first week of its introduction to the people. The total donation received Rs 10,000 crore since its inception. On April 1, an RTI filed was filed seeking details of the fund, and to its reply, the PMO stated that the Fund is not a public authority under the ambit of Section 2 (h) of the Right to Information Act, 2005, and therefore it is not bound to divulge the information sought in the application.
What is Public Authority under RTI Act?
Section 2(h) of the RTI Act, 2005 defines the term public authority. According to the Section, the term public authority includes within its ambit any authority, body or institution of self-government established or constituted by or under:
a) The constitution;
b) Any other law made by parliament;
c) Any other law made by the state legislature and
d) Notification issued or order made by the appropriate government.
The term also includes “body owned, controlled or substantially financed; non-governmental organization substantially financed directly or indirectly by funds provided by the appropriate government”.
Legal provisions involved
The rejection of the applications appears to be a deliberate attempt to mislead the applicant breaching the Right to Information (RTI) Act. It amounts to deemed refusal and real rejection without valid grounds. The PM Cares Fund was created by the Prime Minister and PMO, the name itself suggests such a point.
It appears that strategic avoidance of transparency has been made by the PMO by refusing the disclosure of ordinary documents which are not included under the exceptions mentioned under Sections 8 or 9 of the RTI Act and wrongly invoking Section 2(h) of the Act. According to Section 8, the government departments have the authority not to disclose any information. This information includes the one which:
- Would endanger national integrity, security or economic interests;
- Would amount to contempt of court;
- Would hamper investigations carried on by police;
- Would affect commercial interests;
- Would threaten ‘fiduciary’ relationships;
- Would harm the person physically
- This Section also protects information pertaining to deliberations of the Council of Ministers and Secretaries while the process is underway.
Section 9 of the Act also provides the exceptional situations according to which without affecting the provisions of section 8, a Central Public Information Officer or State Public Information Officer, is not obliged to provide any information where the request for such information involves providing access which would involve an infringement of copyright subsisting in a person other than the State.
The rejection and the functioning of the PMCARES fund raises several questions regarding the transparency of the fund. These questions are as follows:
- Control of the PMO: the PM’s page states that PM is the ex-officio chairman, and he shall have the authority to nominate three trustees to the board of trustees who shall be experts in the field of research, science, health, social work, law, and public administration. The appointment of its trustees from among the party members puts the fund out to question;
- Statutory exemptions: the PM’s page announces exemptions from any tax liability without expressly mentioning any statutory authority or provision under which such exemption is granted. The Prime Minister’s National Relief Fund (PMNRF) is already functional and a creation of similar additional fund remains unexplained.
- Compulsory donation: the PM’s official page states that the donation is completely voluntary and there is no obligation attached to it. However, the request of the revenue department of the finance ministry to its employees to compulsorily donate a single day’s salary till March 2021 doesn’t go well with the nature of the fund.
- The control of PMO and transparency: the questions relating to the accountability of the fund arise out of the following reasons:
- It hold PM’s name;
- The operation of the fund is within the PMO;
- The concessions like tax exemptions amount to ‘substantial funding’.
Further the fact that the fund is headed by the Prime Minister comprises of three cabinet ministers and the appointment of the other three members by them makes the fund, a public authority under the RTI Act, 2005.
Since the fund is under the total control of the PMO, it becomes a public authority. If it were deemed to be a public charity trust, then it is governed by the Trusts Act which would have demanded it to be transparent. If it is considered to be a society under the Societies Registration Act, 1860, it must be transparent.
In Thalappalam Ser. Coop. Bank Ltd. v. State of Kerala, it was held that where a body is not merely regulated or supervised by the appropriate government but is rather “substantially controlled” by it. The body becomes public authority under the RTI Act, 2005.
In Prime Ministers National Relief fund v. Aseem Takyar, it was held that the satisfaction of Section 2(h)(d)(i) by the fund will bring it within the definition of “public authority” within the meaning of public authority.
The primary objective of creating the und was to deal with any kind of emergency or distress situation, like posed by the COVID-19 pandemic. However, with the passage of time there has been several questions which have arose owing to the lack of transparency. These questions need to be answered as soon as possible in order to remove the ambiguity in the minds of people.
Author: Shivangi Tiwari from HNLU, Raipur.
Editor: Silky Mittal, Junior Editor, Lexlife India.