Huff Post: New Delhi: Thursday,
10 September 2020.
In an
internal note, the Narendra Modi government’s Ministry of Corporate Affairs
described the Prime Minister’s Relief Fund (PMNRF) as a “central government
fund” to confirm that it could receive money set aside by companies to fulfill
their corporate social responsibility obligations.
But in
the Delhi High Court, the PMNRF described itself as a “private fund” that is
“divested of any government character” and “not a business of the Central
Government” to justify refusing to share information about the fund’s finances
under the Right to Information (RTI) act, according to a review of official
documents accessed by HuffPost India.
Given
that a Joint Secretary rank official in the Prime Minister’s Office (PMO)
administers the PMNRF in an honorary capacity as its Secretary, after being
appointed by the Prime Minister, the submissions made in the High Court by the
fund’s lawyers were, for all practical purposes, on behalf of the PMO.
What’s
notable here is that the Modi government’s contradictory stand on the PMNRF is
strikingly similar to its contrasting position about the PM CARES fund. Because
in the case of PM CARES, too, the corporate affairs ministry explicitly wrote
in an official communication that the PM CARES is set up by the central
government and thus eligible for receiving corporate social responsibility
funds. But in the Supreme Court, the Modi government argued and the court
agreed, that the PM CARES is a ‘public charitable trust’ to avoid scrutiny of
its finances by the Comptroller and Auditor General.
Significantly,
this previously undisclosed internal note of the corporate affairs ministry,
read together with the PMNRF’s submissions in high court, points towards the
means used by the Narendra Modi government to ensure that both PM CARES and
PMNRF remain eligible for receiving corporate social responsibility funds while
also keeping them out of the purview of the RTI Act thereby ensuring secrecy
about its donors as well as beneficiaries.
“This
previously undisclosed internal note of the corporate affairs ministry, read
together with the PMNRF's submissions in high court, points towards the means
used by the Narendra Modi government to ensure that both PM CARES and PMNRF
remain eligible for receiving corporate social responsibility funds while also
keeping them out of the purview of the RTI Act.
On
PMNRF, as HuffPost India has previously reported, a two judge bench of the
Delhi High Court could not agree on the validity of the government’s stand. In
May 2018, Justice S. Ravindra Bhat and Justice Sunil Gaur asked the Acting
Chief Justice Gita Mittal to appoint a third judge to decide the matter. Since
the publication of that report in April, the case never came for consideration
before a third judge so it remains undecided.
“There is
no transparency. Citizens have the legitimate right to know, where and for what
purpose funds are being utilised,” said Aseem Takyar, a transparency activist
whose RTI application snowballed into the PMNRF case in the High Court.
In 2012,
Takyar filed an RTI application seeking details about the donors and
beneficiaries to the PMNRF from 2009 till 2011. The Prime Minister’s Office
under Manmohan Singh refused, on the grounds that sharing the information
threatened the privacy of the fund’s donors and beneficiaries. It used this
same argument even in the Central Information Commission to prevent disclosure
of information. But a year later, in August 2013, the previous government also
made the fund legally eligible to receive Corporate Social Responsibility funds
for the first time by amending the Companies Act.
When
Narendra Modi took over as Prime Minister in 2014, the PMNRF continued to cite
privacy as a reason to deny information, but also added another ground for this
denial to state that the PMNRF is not a public authority as defined under
section 2(h) of the transparency law and need not provide any information to
applicants.
Section
2(h) of the RTI Act 2005 provides a broad definition of public authorities
which are legally obliged to provide information to RTI applicants. They
include bodies set up by the central government.
As of
date, the PMNRF’s website states the fund has a balance of 3800.44 crores,
while PMCARES had 3076.62 crores till March 31, 2020.
HuffPost
India has written to the Corporate Affairs secretary Rajesh Verma to understand
why his ministry’s internal note describe the PMNRF as a ‘central government
fund’. This report will be updated if he responds.
THE
INTERNAL NOTE
When
Prime Minister Narendra Modi’s Advisor Bhaskar Khulbe wrote to the Ministry of
Corporate Affairs on May 12 2020 regarding the PM CARES fund, Deputy Director Aparna Mudiam of the Ministry
of Corporate Affairs prepared an explanatory note for senior officials in her
ministry the same day.
HuffPost
India has reported on the implications of Khulbe’s letter here.
In her
note, Mudiam explained a provision of the Companies Act that allowed
corporations to donate money they had set aside for corporate social
responsibility to Central Government Funds. This provision falls under a part
of the Act called “Schedule VII”.
“Currently,
there are three Central Government Funds explicitly mentioned in the Schedule
VII viz. The Prime Minister’s National Relief Fund (PMNRF), Swacch Bharat Kosh
and Clean Ganga Fund,” Mudiam wrote. “While the PMNRF has been specifically
mentioned in the Schedule VII since its inception, Swacch Bharat Kosh and Clean
Ganga Fund were included in Schedule VII through an amendment dated 25th
October, 2014 on the request of the PMO.”
Mudiam’s
note clearly establishes that the PMNRF is, in fact, a central government fund.
 |
| Internal note of the Ministry of Corporate Affairs drafted by Deputy Director Aparna Mudiam in response to the letter by Advisor to Prime Minister Bhaskar Khulbe. Accessed by HuffPost India under the RTI Act. |
Yet in
the Delhi High Court, the Modi government, via the PMNRF, took the opposite
stand.
As the
order dated 23 May 2018 notes, “...the Fund contends that PMNRF is a private
fund comprising of voluntary donations made by individuals and institutions and
is not a business of the Central Government. Therefore no right to information
can be enforced against it. The Fund further contends that PMNRF does not owe
its establishment to an order of the government and does not receive any funds
or finances by the government, thus, it is not a public authority under Section
2(h) of the RTI Act.”
The fund
also argued further that, the “...PMNRF is divested of any government character
as no guideline can be laid down for disbursement of amount from PMNRF, as it
is not a part of any Government Scheme or business of the Central Government
and also not subject to audit of Comptroller and Auditor General of India
(CAG). All these points make PMNRF fall outside the scope of public authority‟
as defined under Section 2(h) of the RTI Act.”
As
mentioned earlier in this report, the two judges of the High Court could not
ultimately come to an unanimous decision and a third judge appears to have not
taken up the matter yet.
The
central question of transparency about funds collected in the name of the Prime
Minister of India still remains unresolved even as the Modi government
continues its contradictory stance about the PMNRF as well as PM CARES.
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