India legal: Delhi: Sunday,
19 July 2020.
Ever
since the Fund was created, it has been beset by controversy for being
non-transparent. Though this has reached the SC, the centre is in no mood to
answer any questions
The
declaration of Covid-19 as a pandemic followed by a nationwide lockdown led to
donations pouring in to help states and people. And on March 28, Prime Minister
Narendra Modi announced the creation of a brand new fund, PM CARES (Citizen
Assistance and Relief in Emergency Situations).
While
the Fund received donations from all over the country, several objections and
questions were raised over it. Several RTI applications were filed, opposition
leaders wrote to the prime minister and some people even approached courts. The
issue has now reached Parliament and the Supreme Court with a public interest
petition being filed and the BJP blocking a parliament panel review of the PM
CARES Fund.
The
controversy over the Fund has been snowballing with even the Public Accounts
Committee, a parliamentary panel, which scrutinises key reports by the
comptroller and auditor-general (CAG), being unable to arrive at an agreement
on examining the Fund. The Committee chairman and the leader of the Congress
party in the Lok Sabha, Adhir Ranjan Chowdhury, asked the members to find a
consensus on this crucial issue.
However,
its attempt to take up the PM CARES Fund for examination was blocked by the
ruling party BJP, which has a majority in the panel. It stated that its funding
is not sanctioned by Parliament and therefore, it cannot be taken up by the
Committee.
Last
month, a petition was filed before the Supreme Court seeking a direction to the
centre to transfer all contributions to the PM CARES Fund to the National
Disaster Response Fund (NDRF). The plea was filed by NGO Centre for Public
Interest Litigation and also asked for the setting up of a national plan under
the Disaster Management (DM) Act for Covid-19.
According
to the petitioners, NDRF should be used in the fight against the coronavirus
and future contributions and grants by individuals and institutions for the
Covid-19 battle should be credited to it and not the PM CARES Fund. While
pointing out that the Fund is not subject to a mandatory CAG audit and was even
outside the purview of the Right to Information Act, they also alleged that the
centre had been refraining from divulging information about the specific
utilisation of crores of rupees that have been contributed to the PM CARES
Fund, till date.
After a
three-judge bench of the apex court comprising Justices Ashok Bhushan, SK Kaul
and MR Shah issued a notice to the centre and sought its response, the
government submitted an affidavit defending the Fund. It informed the Court
that the existence of the NDRF does not stop authorities from creating another
fund like the PM CARES Fund for voluntary donations.
“There
does exist a National Disaster Response Fund as stipulated under Section 46 of
Disaster Management (DM) Act, 2005, which so far consisted of the fund in the
form of budgetary provisions made by the Central government in NDRF and state
governments and Central government in State Disaster Response Funds without any
private contribution,” the government said.
It also
said that the prayer to credit funds received in PM CARES to NDRF is neither
maintainable on merit nor is otherwise maintainable under Article 32 as all
funds other than those stipulated under Section 46 of the DM Act, 2005 are
separate, different and distinct, created separately under separate provisions.
When a
petition was filed before the Supreme Court questioning the need to create a dedicated
PM CARES Fund and several State CM Relief Funds when the NDRF and the State
Disaster Relief Funds were already formed in 2005 under the DM Act, the Court
noted that such petitions had a political colour to them. The Court also
dismissed another PIL questioning the very basis of forming a PM CARES Fund.
Meanwhile,
an RTI application was filed by advocate Abhay Gupta on April 1 asking for
details of the PM CARES Fund, including the total amount deposited in it till
date, total amount deposited in the last two months, PAN card details given to
open the PM CARES account, details of the amount spent from the Fund till date
and details of the person who deposited the highest amount till date. However,
the reply he received on May 29 said that the PM CARES Fund was not a public
authority, and therefore the information sought could not be given.
“PM
CARES Fund is not a Public Authority under the ambit of Section 2(h) of the RTI
Act, 2005. However, relevant information in respect of PM CARES Fund may be seen
on the Website—pmcares.gov.in,” stated the reply.
The same
response was received by advocate Yash Jain, who too had filed an RTI
application on April 1 seeking details regarding the constitution of the Fund
and the purpose of creating it, instead of using the Prime Minister’s National
Relief Fund (PMNRF).
But the
moot point is that if the PM CARES Fund is not considered a public authority
under Section 2(h) of the RTI Act, it will not come under the ambit of the RTI
Act, and details regarding it cannot be sought by citizens under the Act.
According to provisions of Section 2(h) of the RTI Act, a “public authority” is
defined as 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.
According
to the RTI Act, only such information which is held by or under the control of
any public authority can be accessed by the general public through RTI.
In 2018,
a division bench of the Delhi High Court heard a petition on the issue of
whether the PMNRF was a public authority under the RTI Act and was liable to
disclose information to applicants. While Justice Ravindra Bhat stated that it
was a public authority, Justice Sunil Gaur did not agree. The case was then
sent to the acting chief justice of the High Court and is still pending.
Meanwhile,
the Bar Council of Delhi (BCD) has written to Modi to provide financial aid
from the Fund to its members who have been hit by a financial crisis due to
Covid-19. KC Mittal, BCD chairman, said the condition of advocates was
worsening and the Council needed financial relief of Rs 500 crore.
“The BCD
has already disbursed Rs 8 crore among needy lawyers and more needs to be done
in order to give them succour,” he said. He demanded release of funds from the
PM CARES Fund as well as contingency funds created under Article 267 of the
Constitution. The letter reads: “It needs to be recognised that the legal
community in Delhi and NCR is facing a severe financial crisis and the
situation demands urgent intervention by the government.”
It
claimed that the Fund has in its corpus a sum of Rs 9,677.9 crore and had
categorically been created to meet “unforeseen disastrous situations” like the
present one. “In such an emergent and disastrous situation, the citizens cannot
be left high and dry,” said the letter.
When the
PM CARES Fund was launched, Modi had invited public contributions to fight the
pandemic. It was set up as a public charitable trust and its chairman is the
prime minister and its members include the defence, home and finance ministers.
The Fund receives voluntary contributions from individuals and organisations
with no budgetary support. The donations made to the Fund not only qualify for
80G benefits for 100 percent exemption under the Income Tax Act, 1961, but also
qualify to be counted as Corporate Social Responsibility (CSR) expenditure under
the Companies Act, 2013.
According
to the official website of the Fund, it will be audited by one or more
qualified independent auditors who will be appointed by the trustees. However,
what has disappointed citizens is the lack of information about the procedure
that was followed prior to formation of the trust, as even to form a trust, a
trust deed stating the objective and rules and regulations of the trust needs
to be framed and registered. The trustees too are under an obligation to follow
the due process of law. The trust deed of the PM CARES Fund, according to which
a trustee is supposed to manage its properties, was not released in the public
domain. What has bewildered people is how a Fund of which the PM is the ex
officio chairman and which is created and run by four cabinet ministers in
their ex officio capacities is not a public authority as they clearly represent
the government in their respective positions and can’t hold those positions in
their private capacity.
At a
time when a pandemic is raging in India, the idea of creating a fund in the
national interest would have been appreciated if it was followed by a
transparent approach and total disclosure of information. Denying this only
gives a wrong impression and all kinds of imputations are attached. Those who
have donated to the Fund have a right to know how much money has been
collected, how it has been used and who are the recipients, especially when the
donations were made with the bona fide belief that it was completely
transparent. After all, in a democracy the government can be held accountable
and the people have the right to get answers.
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