Tuesday, August 9, 2022

Delhi High Court issues notice to PMO over plea seeking declaration of PM CARES Fund as State under Article 12

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The Delhi High Court on Tuesday, while stressing on the importance of the matter related to a petition seeking to declare that PM CARES Fund as ‘State’ under Article 12 of the Constitution, directed the Prime Minister’s Office to file a detailed reply over the same.

The Division Bench comprising Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad further expressed displeasure over the one-page affidavit filed earlier on behalf of the PM-CARES Fund Trust, saying that the same was not detailed enough to justify the concerns raised in the petition.

The affidavit filed by the Under Secretary at PMO had stated that there was no control of either the Central Government, or the state government in the functioning of the PM CARES Trust.

The Centre was given four weeks to file a detailed reply in the matter.

The Court then fixed September 16 as the next date of hearing.

Senior Advocate Shyam Divan, arguing for PIL petitioner Samyak Gangwal, submitted that the fund was nothing but State within the meaning of Constitution of India and that any fund created by constitutional functionaries cannot be contracted out of the Constitution of India.

He said that if the Prime Minister wished to settle an institution, he may do so, however, the same has to be within the umbrella of the State.

Divan also argued that the Fund was destructive of good governance and may lead to many problems in the future.

He sought declaration of the PM CARES Fund as a State. This, he said, would attract consequential directions for: (i) disclosing the Fund’s audit reports periodically; (ii) disclosing the Fund’s quarterly details of donations received, utilization thereof and resolutions on expenditure of donations.
In the alternative, it was contended that in case PM CARES Fund was not a State under Article 12, then: (i) Centre should widely publicise that PM CARES was not a Government owned fund; (ii) PM CARES Fund should be restrained from using “PM” in its names/ website; iii) PM CARES Fund should be restrained from using the State Emblem; (iv) PM CARES Fund should be restrained from using the domain name “gov” in its wwebsite; (v) PM CARES Fund should be restrained from using PM’s Office as its official address; (vi) Centre should not extend any Secretarial Support to the funds.

On the other hand, the PM CARES Fund has objected to maintainability of the petition, stating that alternative statutory remedies were available to the petitioner under the RTI Act, 2005.

On merits, the Fund reiterated that it was not “public authority” within the meaning of Section 2(h) of the RTI Act as the mandatory statutory requirements of the provision were not in existence.

The Trust functioned with transparency and its funds were audited by an auditor, a Chartered Accountant drawn from the the panel prepared by the Comptroller and Auditor General of India, noted the Fund.

The Supreme Court had earlier observed that there was no occasion for audit of PM CARES Fund by the Comptroller & Auditor General of India, as it was a public charitable trust.

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