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RTI or the Right to Information was introduced through the Right to Information Act, 2005 with the objective of making the government and its agencies accountable to the public by the release of certain information which may be beneficial to the citizens in order to make an analysis of the proper functioning of the state.
The battle against the pandemic of COVID-19 and similar situations which the nation might face, a financial assistance fund in the form of a public charitable trust was set up under the name of Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM-CARES). It accepted donations from the public, and to encourage a larger participation it incentivized the process by making contributions to the fund a part of Corporate Social Responsibility and also provided certain tax exemptions.
The prior existence of Prime Minister’s National Relief Fund (PMNRF) generated a question in the mind of law student about why a separate alternative fund was needed and for this he filed an RTI for the trust deed of the PM-CARES trust along with all the government orders, notification, and circulars relating to creation and operation of the trust fund. The Prime Minister’s Office replied to the RTI by stating that as the trust was not a public authority and hence not under the ambit of Section 2(h) of the RTI Act, 2005 (hereinafter ‘the Act’).
The Plea for PM-CARES under the ambit of the Act
Following the reply, a Public Interest Litigation is filed before the Delhi High Court in order to ascertain a direction to the trustees of the trust for the display of the accounts of the contributions. The petitioner asserts that if any institution or agency that is “owned”, “controlled” or “substantially financed” by the Government qualifies a public authority under the Act. The trust is contended to be both substantially controlled and financed by the government.
It is further submitted that, as the Prime Minister is the ex-officio chairman of the trust while the Defense, Finance and Home Affairs ministers are the ex-officio trustees and that they may form rules/criterions for spending of the trust funds. The feature establishes the control of the trust by the government. To support the claim regarding financing, it states that large sum of money amounting to the corpus of ₹10000 crores have been made from Public Sector Undertakings, Central Ministries and Departments. Also there have been mandatory deductions from the salaries of civil servants, members of judicial entities and armed forces personnel for the fund. Therefore, citing the judgement of the hon’ble Supreme Court in PUCL v. Union of India (2004) 2 SCC 476, it is stated that PM-CARES is a public authority.
If PM-CARES if not a public authority, the petition states, then the Right to Information originates from Article 19(1)(a) giving citizens a fundamental right of speech and expression and therefore the people have a right to know about the details of the accounts. It further stated on the same ratio that if it is not to be a public authority then whether the government can make it a mandate to contribute funds to the employees in the agencies and public servants.
It also stated that even the victims of COVID-19 have a right to know about the funds which are being collected by the government for their financial assistance as they are in the desperate need for the same and are currently not in position to enforce their fundamental rights. The objective of the trust is a public cause and the trustees are working at a pro bono capacity, therefore it shall be directed that the details of the accounts relating to the collection of funds and its expenditure shall be made public.
Provisions of the RTI Act and Analysis
The provision which was cited in the PMO response to the RTI was of ‘public authority’. It stated that the trust is not a public authority as defined under the act and hence was not liable to provide any information as requested under the act. Section 2(h) defines the term ‘public authority’ for the purpose of the legislation.
Public authority is any authority, body or institution of self-government established or constituted under –
- by or under the Constitution
- by any law made by the Parliament
- by any other law made by State Legislature;
- by notification issued or order made by the appropriate Government,
The second part of the definition is for encompassing bodies in which the government has a substantial stake either in the form of control over management or
- body owned, controlled or substantially financed;
- non-Government organization substantially financed,
directly or indirectly by funds provided by the appropriate government.
It is the second part of the definition that is relevant in the instant case. Whether the control and financial participation of the government in the trust could be established to bring it under the ambit of the act is to be decided by the court under the petition filed.
As there is no definition of the ‘control’ in the act, the Supreme Court while interpreting the same in Thalappalam Service Coop. Bank Ltd. v. State of Kerala held that mere ‘supervision’ or ‘regulation’ by a statute or a body would not deduce it to be a ‘public authority’ as the control of the government shall be substantial.
The PM-CARES fund was specifically created under the trust for financial assistance in the battle against the COVID-19 pandemic. A registered trust is a distinct legal entity having a separate legal character. As the trustees are elected representatives and have utilized their office for creating the trust and attracting donations in it, it is only viable that the accounts of the trust regarding the source of collection of donations and the subsequent expenditures which are made using such contributions are disclosed to the public in order to reinforce the principles of accountability to the public in the government and to have a transparent, bona fide operation of such trust.
Author: Ketan Swaraj Nair from UPES, Dehradun.
Editor: Silky Mittal, Junior Editor, Lexlife India.