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When PM CARES doesn’t care for transparency!

NDA Government’s attitude a big blow to the 16-year-old RTI!

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By M. Sridhar Acharyulu

The Narendra Modi Government has again refused to make the Prime Minister’s Citizens Assistance and Relief in Emergency Situations (PM CARES) Fund accountable. It came up with a strange argument that though the CARES is a public charitable trust, it is not a government organization, and hence not liable to answer under the Right to Information Act. This attitude can be a big blow to the transparency law which is going to enter its 17th year on October 12, 2021, the so-called RTI Day.

A petitioner, Samayak Gangwal, filed a writ petition challenging the PMO’s order rejecting his RTI application stating that PM CARES was not a “public authority” within the meaning of Section 2(h) of the RTI Act.

Section 2(h) defines public authority: A Public authority means any authority/ body self-government constituted: (i) by or under the Constitution; (ii) by any other law made by the Parliament; (iii) by any other law made by State Legislature; (iv) by notification issued or order made by the appropriate Government, and includes any- (v) body owned, controlled or substantially financed; (vi) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government.

PM should declare it a public authority

The PM CARES Fund should have been declared as a public authority by PM himself because the Prime Minister is its managing trustee and it is called PM CARES Fund and not Modi CARES Fund. Whether Modi cares or not, PM should care to be transparent, accountable and answerable as to who gave how much, and to whom it was given for what purpose.

The donations will pour in from different sources, including the Corporate Social Responsibility quota of public sector money, because the Prime Minister controls it not because Modi is the Prime Minister.

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Why the RTI requests are being rejected by the PM CARES? If sincerely Government adheres to norms prescribed by the RTI Act, there is absolutely no scope for rejecting information request. The PMO is established to be a public authority and the information about PM CARES is either held by it or under its control. Even if some information is withheld, the PMO cannot deny the substantive part of what was sought about PM CARES. Even the Trust of the PM CARES is in the control of PMO, for which, it must be shared, subject of course to exceptions under Section 8. Most of the information about PM CARES should have been voluntarily published.

The Prime Minister’s Office should not have deliberately ignored the will that the Parliament had expressed in the RTI Act, and the spirit of the Rules and Office Memoranda (OM) issued by the Department of Personnel and Training (DoPT) in responding to RTI requests. The DoPT is the nodal agency to implement people’s access to government’s records in the entire nation. The PMO is one of the ministries in the Union Cabinet, under which the DoPT functions. One cannot imagine that the PMO’s Chief Public Information Officer has no knowledge of the Rules and OMs issued by its own wing, the DoPT.

Section 4(1)(b) of RTI Act mandates suo motu disclosure of information on various points including: (iii) the procedure followed in the decision-making process, including channels of supervision and accountability… (viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public…

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(xiii) particulars of recipients of concessions, permits or authorizations granted by it. This mandates that the PMO to give all information such as what the process was and how the decision to call for the lockdown was made, without waiting for someone to file an RTI request. Regarding PM CARES, it should disclose the donors, beneficiaries, decisions made and how they were made.

Section 4(2) says: It shall be a constant endeavor of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.

Section 4(4) mandates that CPIO shall make such information: “…available free or at such cost of the medium or the print cost price as may be prescribed”. Section 4(1)(c) says public authority shall: “…publish all relevant facts while formulating important policies or announcing the decisions which affect public.”

Section 4(1)(d) says public authority: “…shall provide reasons for its administrative or quasi-judicial decisions to affected persons.”

If the PMO thinks it is an administrative decision, then also it must disclose complete details and reasons. Ultimately, how can the PMO breach Section 6(3), which says where requested information is held by or is closely connected with functions of another public authority, CPIO shall transfer to that public authority?

An under-secretary of PMO in Government of India filed an affidavit on behalf of PM CARES before Delhi High Court on September 23, claimed that it is not created by or under the Indian Constitution or any other statute, and the amount received by it does not go in the Consolidated Fund of India.

It is surprising and shocking to read that the Government of India did not hesitate to say in this affidavit before Delhi High Court that PM CARES was not a public authority though it has agreed to characterize it as a public charitable trust.

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The nine claims of the Central Government reflected in an affidavit filed by an under-secretary before Delhi High Court are Illegal and wrongful.

Claim No. 1: Government says PM CARES was neither created by Constitution of India nor by any statute.

•             No. PM CARES Fund is creation of PMO, which is public authority and constitutional office. It is a wing of PM’s administration to face the pandemic of coronavirus Covid-19.  A mere naming as PM CARES Fund to a part of its administrative activity will not make that a separate entity from PMO. Being a creation of PMO through its official website, which in letter and spirit is a notification addressing people at large.

•             It uses lions’ symbol of Indian Government, tri-colour and claims PMINDIA on its official website, and wrongfully says it was not ‘state’. See https://www.pmindia.gov.in/en/about-pm-cares-fund/

Claim No.2:  The amount received by it does not go to the Consolidated Fund of India.

•             For that reason, PMO should be accountable and answerable to people about sources and disbursement of the PM Cares Fund.

Claim No. 3: Neither Central nor any state government controls the PM Cares Trust.  “This Trust is neither intended to be or is in fact owned, controlled or substantially financed by any Central Government or State Government or any instrumentality of the any Government. In other words, 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.”

•             Not a truthful claim. PMO completely controls it. PM is the real head of the Central Government while President is nominal head. PM is chairman, while Ministers for defence, Home and Finance are the members. In an advertisement Prime Minister Narendra Modi appealed for donations. The sentence that was first in the Advertisement says “PM announces new fund for people to donate towards Govt fight against Coranavirus”. It is for Government’s fight. This is a confession of PMO revealing intention of Centre to make it a Government Fund.  Another Advt claims it was “MY Govt or Meri SARKAR”. It is interesting that Narendra Modi being a Prime Minister, is serving as a Chairperson of a trust, that is claimed to have been not connected with the government, while in office. If it is unconnected with Government, PM Cares could become an office of profit, and that could disqualify him from holding PM’s office. (https://www.pmindia.gov.in/en/about-pm-cares-fund/) The very fact that it has gov.in the Government domain name for its website, indicates that it is part of the Government. To say no is absurd.

Claim No. 4: Composition of the board of trustees can never be a determinative factor to ascertain whether the respondent is a “public authority” or not;

•             It is a baseless claim. The composition decides the public character. If it is headed by a political party president and supported by retired officers, this argument works.

The official website of PM claims about PM Cares: “Prime Minister is the ex-officio Chairman of the PM CARES Fund and Minister of Defence, Minister of Home Affairs and Minister of Finance, Government of India are ex-officio Trustees of the Fund.” Ex-officio means that Narendra Modi is chairperson not in his personal capacity but in his official position as Prime Minister. So is the authority of the members, who are ex officio ministers. When it is headed by PM and officers of PMO exercise those power, it becomes public authority.

•             Is PM CARES Fund a Private Trust? Section 19 of the Indian Trusts Act mandates the trustees to present full and accurate information of the amount and state of the trust property to the beneficiaries. If any law provided access to information of ‘private’ body (private trust, if PM CARES claims to be so) the last sentence of definition of information under Section 2(f) of RTI Act mandates it to be disclosed. 

•             Is it a trust or public charitable trust? Whether character of Trust can be drawn from the statements of the Government of India or PMO who flatly deny any accountability? The PIO of PMO through his replies cannot determine the true nature of this CARES Fund. The Government has released the trust deed of the fund, in December 2020, which will serve as a guide to determine its true nature, which says that it is a public charitable trust. What is to be noted is that it does not exempt it from the purview of the RTI Act. The Bombay high court has already clarified the law on this stating that public charitable trust will be considered a public authority under the RTI Act if it satisfies the condition of sub-clauses (i) of Section 2(h)(d) i.e. if it is owned, controlled or substantially financed by the government.

•             Clause 8 of the trust deed defined the powers of the Board of Trustees (“Board”), and the board has complete control over management and administration of the trust. The designated trustees are cabinet ministers. They have been called trustees because of their ex-officio capacity as per clause 6 of the deed: (1) Prime Minister, who is also the chairman of the trust, (2) Minister of Defense, (3) Minister of Home Affairs and (4) Minister of Finance. Further, the chairperson has the power to nominate three other trustees from among the eminent persons in various fields like law, health, science, etc. Can we say that because PM and three Cabinet Ministers are having ‘control’ over the body? The Supreme Court answered this question. In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, the apex Court clarified that if the government has a dominant role to play in terms of power to appoint the secretary, nominate and terminate members of the governing board, then it is said to have control over the body. Can anybody say that in the PM CARES Fund, the government officers holding positions of trustees are just ceremonial heads, and the entire management and administration of the fund are within their hands? No. That control decides that it is public authority.  The Chairman ie., Prime Minister has complete power to modify the Constitution of the Trust Board. The office PMO with its secretariat helps the management. Joint Secretary of PMO is the secretary of the fund.

•             The Government is not merely wielding supervisory or regulatory control but has ‘substantial’ control over the fund. This control is enough to make PM CARES Fund a public authority, as per the decision of the Supreme Court in Thalappalam Service Coop. Bank Ltd. v. State of Kerala as an essential requirement under section 2(h)(d)(i) of RTI Act. It has to be a public authority under the RTI Act.

•             If the PM or his three Ministers or his office takes a decision regarding the operation of the PM CARES Fund, can anybody describe them as the decisions in their personal capacity. They are absolutely official.  The fund is not being used for personal purposes but for achieving the objectives of trust. The clause 4.2 of the trust deed explains primary objectives:

1.            “To undertake and support relief or assistance of any kind relating to a public health emergency or any other kind of emergency, calamity or distress, either man-made or natural, including the creation or upgradation of healthcare or pharmaceutical facilities, other necessary infrastructure, funding relevant research or any other type of support.

2.            To render financial assistance, provide grants of payments of money or take such other steps as may be deemed necessary by the Board of Trustees to assist the affected population.

3.            To undertake any other activity, which is not inconsistent with the above Objects.”

•             Apart from this, the officers and staff will sit in the seat of PMO. They communicate on Government website. The PM and Ministers appeal to donate in official capacity in the Government platforms and official domains like gov.in. They use Sarnath Lion Capital of Ashoka symbol which is the emblem of India. They instruct, made it mandatory or request or persuade the employees to donate one day salary or ask, instruct if not compelling the Public Sector Undertakings to divert the Corporate Social Responsibilities fund to PM CARES.

•             Whom does this secrecy in PMO or PM CARES Fund created by the government benefit? Will It not injure the people it seeks to serve? Does it not damage its own integrity and operation? Will it not breed distrust, dampen the fervor of its citizens and mock their loyalty?

Claim No. 5: Merely because some Government officer provides ex gratia services to the public trust, can have no relevance; A Government officer providing secretarial assistance on honorary basis while discharging his official duties can never be a relevant consideration for declaring a body to be a public authority;

•             It’s a fantastic claim: Because the Government Officer exercises the exclusive power to administer, it becomes state control and that makes it public authority under RTI Act and ‘state’ under Article 12 of our Constitution.

Claim No. 6: PM CARES Fund comprises of voluntary donations made by individuals and institutions and is not a part of business or function of the Central Government in any manner;

•             Untruthful claim: 38 Public Sector Undertakings donated around Rs 2015 crore ‘voluntarily’. The PM Cares Fund which claims to be transparent should come out on its own to reveal who donated and how much. They are not doing so because that will reveal the ‘state’ character.

Claim No. 7: Mere grant of certain tax exemptions with regard to the voluntary donations made to a public trust is not a determinative factor for the purpose of section 2[h] of the RTI Act;

•             This is most untenable contention. PMO”s official website says; Donations to PM CARES Fund would qualify for 80G benefits for 100% exemption under the Income Tax Act, 1961. Donations to PM CARES Fund will also qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the Companies Act, 2013. 100 PER CENT Tax exemption to PM CARES Fund is to the tune of thousands of crores of rupees, that makes a public trust substantially funded which squarely falls within four corners of Public Authority definition in RTI Act.

•             Officially Website further says: PM CARES Fund has also got exemption under the FCRA and a separate account for receiving foreign donations has been opened. This enables PM CARES Fund to accept donations and contributions from individuals and organizations based in foreign countries. This is consistent with respect to Prime Minister’s National Relief Fund (PMNRF). PMNRF has also received foreign contributions as a public trust since 2011.

Claim No. 8: 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.

•             It is another wonderful self-contradiction. The CAG auditors should audit, PM Cares Fund believes in transparency, but does not want to answer requests for information under RTI Act.

Claim No. 9: “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,”

•             If it is done really, it is the ordinary statutory duty of any trust, especially public charitable trust.  Then why it does not respond to RTI requests? Why it litigates in courts, to consume years and years without being accountable taking the advantage of delay in dispensation of justice?

Jeromy Bentham says: “A secret policy saves itself from some inconveniences I will not deny; but I believe, that in the long run it creates more than it avoids; and that of two governments, one of which should be conducted secretly and the other openly, the latter would possess a strength, a hardihood, and a reputation which would render it superior to all the dissimulations of the other.” Who will care Jeromy Bentham?

Prof. (Dr) M. Sridhar Acharyulu is a former Central Information Commissioner and Dean, School of Law, Mahindra University, Hyderabad.

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