PM Cares can’t be brought under RTI: Centre to HC
New Delhi: The Union government and the Prime Minister’s Office (PMO) have told the Delhi high court that the PM CARES Fund can neither be brought under the ambit of Right to Information (RTI) Act as a “public authority”, and nor can it be listed as a “State”
The Union government and the Prime Minister’s Office (PMO) have told the Delhi high court that the PM CARES Fund can neither be brought under the ambit of Right to Information (RTI) Act as a “public authority”, and nor can it be listed as a “State”.
The Centre, in response to pleas seeking to know the legal status of the Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES), told a bench of chief justice DN Patel and Jyoti Singh in an affidavit that the Fund was set up as a public charitable trust, and not created by or under the Constitution of India, or by any law made by Parliament or any state legislature.
One of the pleas by lawyer Samyak Gangwal sought to declare the PM CARES Fund a “State” under the Constitution to ensure transparency in its functioning. His other petition has sought that PM Cares be brought under RTI as a “public authority”.
The matter was listed on Wednesday but was not taken up. The next date of hearing is September 27.
The Union government opposing the pleas, said that this Trust was neither intended to be or owned, controlled or substantially financed by the Union government, any state government, or any instrumentality of any government.
“PM CARES Fund comprises voluntary donations made by individuals and institutions and is not a part of business or function of the central government in any manner. PM CARES Fund is not a part of any government scheme or business of the central government and being a public trust, it is also not subject to audit of Comptroller and Auditor General of India (CAG).
“…that PM CARES Fund is not a “public authority” under the ambit of Section 2(h) of the RTI Act and therefore the present petition is liable to be dismissed,” the Centre said in its affidavit submitted on September 14, 2020, adding, there is no control of either the central government or any state government/s, either direct or indirect, in functioning of the Trust in any manner whatsoever”.
The PM Cares Fund was formed by the Prime Minister of India on March 27, 2020 to extend assistance to the citizens of India in the wake of the ongoing Covid-19 pandemic. The fund, had however, faced resistance from activists, lawyers and the political parties who had questioned the transparency of the donations.
Pradeep Kumar Shrivastava, under secretary, PMO, who is working in the trust on an honorary basis, also said that irrespective of whether the trust was a “State” or other authority under the Constitution or whether it is a “public authority” within the RTI Act, “it is not permissible to disclose third party information”.
“Suffice to mention that all donations received by the trust are received via online payments, cheques and / or demand drafts, and the amount so received is audited with the audited report and the expenditure of trust fund displayed on the website….,” Shrivastava told the court through an affidavit.
He said that the trust functions with transparency, and its funds are audited by an auditor who is a chartered accountant drawn from the panel prepared by the Comptroller and Auditor General of India.
“To ensure transparency, the audited report is put on the official website of the trust along with the details of utilization of funds received by the trust,” he said, adding, that the trust’s fund is not a fund of Government of India, and the amount does not go in the Consolidated Fund of India.
The Centre said that a government officer providing secretarial assistance on honorary basis while discharging their official duties can never be a relevant consideration for declaring a body to be a public authority when it does not fall within the RTI Act.
It also contended that mere grant of certain tax exemptions with regard to the voluntary donations made to a public trust is not a determinative factor to bring it under the RTI Act.
The petition, filed through advocate Ayush Shrivastava, said that the trustees of the fund are the Prime Minister, defence Minister, home minister and the finance minister and immediately after the formation of the fund, the Centre, through its high government functionaries, represented that the fund was set up and operated by the Government of India.