{"id":216289,"date":"2021-09-30T12:36:18","date_gmt":"2021-09-30T07:06:18","guid":{"rendered":"https:\/\/www.indialegallive.com\/?p=216289"},"modified":"2021-09-30T15:06:41","modified_gmt":"2021-09-30T09:36:41","slug":"pm-cares-fund-covid19-pm-modi-ndrf","status":"publish","type":"post","link":"https:\/\/www.indialegallive.com\/column-news\/pm-cares-fund-covid19-pm-modi-ndrf\/","title":{"rendered":"PM Cares, Do We?"},"content":{"rendered":"\n
By Narasimhan Vijayaraghavan<\/strong><\/p>\n\n\n\n Prime Minister Narendra Damodardas Modi famously said: \u201cna khaungaa, na khaane doonga (neither will I indulge in corruption, nor allow anyone else to indulge in it)\u201d. And his electoral pledge was: \u201cIf the poor would have not got the right to vote, then I would not have become the \u2018Pradhan Sewak\u2019 to serve the people.\u201d Put the two together and you have the magical potion of PM-CARES, said a commentator. The Court responded in the negative to all of them. Its reasoning was based on two broad points: first, the two funds have different stated objectives; second, their form and structure are also different. On the first point, the Court noted that the calamities covered under the NDRF are as follows: \u201ccyclone, drought, earthquake, fire, flood, tsunami, hailstorm, landslide, avalanche, cloud burst, and pest attack considered to be of a severe nature\u201d by the government to justify supplementing a state government\u2019s State Disaster Relief Fund resources. The PM-CARES Fund,\u00a0on the other hand, refers to a \u201cpublic health emergency\u201d.<\/p>\n\n\n\n Also Read<\/strong>: When PM CARES doesn\u2019t care for transparency!<\/a><\/p>\n\n\n\n Additionally, the Court stressed\u00a0that the NDRF made no specific provision for biological calamities or public health emergencies. It could only be used for these purposes, if the Union government issued a notification to this effect. Matters did not end there. This is India. And Modi has too much traction. The Delhi High Court is now seized of a mutation of the earlier PIL variant seeking to declare PM-CARES as \u201cState\u201d or \u201cAuthority\u201dwithin the meaning of Article 12 of the Constitution of India and a \u201cPublic Authority\u201d amenable to the Right to Information Act.<\/p>\n\n\n\n Also Read:<\/strong> PM CARES Fund should cover kids orphaned during and due to Covid-19: Supreme Court<\/a>
Alas, we see politics in anything and everything. We live in such polarised times. Marcus Aurelius told us to \u201csift and see\u201d. We have lost the \u201cart of good and bad in everything as we indulge in cacophonous ideological food fights\u201d, Harvard Prof Michael Sandel said.
We had the inevitable challenge, their staple diet, from The Centre for Public Interest Litigation, which moved the Supreme Court against PM-CARES. It faced three posers:<\/p>\n\n\n\n
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On the second point, the Court noted that the NDRF is a statutorily constituted fund which\u00a0requires oversight by the CAG. In contrast, the PM-CARES Fund\u00a0is\u00a0a public charitable trust\u00a0which consists of voluntary contributions from individuals and organisations rather than containing any public funds. Therefore, it does not need\u00a0to be audited by the CAG, and can instead be audited by a private accountant.
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Based on these two separate considerations, the Court came to its conclusion: given the gravity of the Covid-19 situation in India, and the fact that the NDRF did not explicitly cover biological or public health emergencies,\u00a0the Union government had the prerogative to create\u00a0a fund containing\u00a0the necessary financial resources to handle the current situation. The apex court went so far as to hold that it was\u00a0not for a petitioner to question or for the Court to sit in judgment upon\u00a0financial decisions made by the Union government.<\/p>\n\n\n\n
PM-CARES Fund, a charitable trust under the law, told the Delhi High Court that the trust\u2019s fund is not a fund of the Government of India and its amount does not go into the Consolidated Fund of India. \u201cIrrespective of whether the trust is a \u2018State\u2019 or other authority within the meaning of Article 12 of the Constitution of India and or whether it is a \u2018public authority\u2019 within the meaning of Section 2[h] of Right to Information Act, Section 8 in general and that of provisions contained in sub section [e] and [j], in particular, of the Right to Information Act, it is not permissible to disclose third party information,\u201d Pradeep Kumar Srivastava, an under secretary in the Prime Minister\u2019s Office (PMO) said in a reply.
Srivastava told the Court that he functions on an honorary basis and that the trust functions with transparency and its funds are audited by a chartered accountant from the panel prepared by the CAG. \u201cTo ensure transparency, the audited report is put on the official website of the trust along with the details of utilisation of funds received by the trust,\u201d the reply said. It said all donations received by the trust are through online payments, cheques or demand drafts. The amount received is audited and the expenditure of the trust fund displayed on the website.
\u201cIn view of the specific provisions of Section 8 of the Right to Information Act, the relief against para 5.3 of the trust deed dated 27.3.2020 pales into insignificance,\u201d Srivastava said, referring to a prayer against a paragraph in the trust deed which states that it was not created by or under the Constitution or by any law made by Parliament or state assembly.
What of these PILs? Harish Salve, Senior Advocate, Supreme Court, scathingly wrote on the \u201cRise and Fall of the PIL\u201d. With time, the growth of this kind of intervention by the court gave birth to organisations whose objective was to file PILs to champion public causes. As the intervention of the courts increased, PILs increasingly became a vehicle for \u201ceminent\u201d members of civil society to clothe their point of view in a constitutional garb and seek its enforcement as enforcement of pseudo-constitutional rights.<\/p>\n\n\n\n