Law and order of india

“Keeping in mind the need for having a dedicated national fund with the primary objective of
dealing with any kind of emergency or distress situation, like posed by the COVID-19
pandemic, and to provide relief to the affected, a public charitable trust under the name of
‘Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund’ (PM CARES
Fund)’ has been set up.”1

The above lines are from the official website of PM CARES fund operated by Prime
Minister’s office. As mentioned above PM CARES fund is a public charitable trust and has
been setup to deal with difficult situations like pandemic. Of course the objective of this trust
shows that it serves the larger public importance. The fund was created on 28 th March 2020,
following the COVID-19 pandemic in India. Prime Minister Narendra Modi is the chairman
of the trust. Since 28th march, 1000s of crores rupees has been collected through this fund. An
RTI application was filed to seek information regarding the constitution of PM CARES Fund.
The application was filed by Harsha Kandukuri, a student pursuing LLM from Azim Premji
University at Bengaluru. The RTI application sought the copies of the trust deed of PM
CARES Fund, all the Government orders, notifications and circulars relating to its creation
and operation. The application was disposed by Prime Minister Office on May 29 replying
that ‘PM CARES Fund is not a public authority under the ambit of section 2(h) of the RTI
Act, 2005.’2 Although the reply that PM CARES Fund is not a public authority is not
corroborating to the description of PM CARES Fund which is given on the PMO website.
Such a response from the PMO has given rise to several questions and obscurity.

The Right to Information Act was enacted in the year 2005 and the Act provides citizens right
to access information relating to public authorities in order to promote transparency and
accountability in the working of every public authority. As per Section 2(h) of the RTI Act,
“Public Authority” means any authority or body or institution of self-government established
or constituted – (a) by or under the constitution (b) by any other law made by Parliament (c)
by any other law made by state legislature (d) by notification issued or order made by the
appropriate Government. The definition of ‘Public Authority’ also includes bodies owned,
controlled or substantially financed, directly or indirectly by funds provided by the
appropriate Government.3 So, according to section 2(h)(d) of the RTI Act, an authority

1
https://www.pmindia.gov.in/en/about-pm-cares-fund/ (Visited on June 5, 2020)
2
PMO reply to RTI filed
3
rti.gov.in/rti-act.pdf (Act No. 22 of 2005)
constituted by an order of the Government is a ‘public authority’. Does the Government want
to say that PM CARES Fund is not created by them? So, if the Government is stating that PM
CARES Fund is not a ‘public authority’ then it is only reasonable to infer that it is not
controlled by the Government. But if we see the name, composition of the trust, control,
usage of emblem, Government domain name everything signifies that it is a public authority.
With the denial from revealing the information related to this fund, Government has
constructed walls of secrecy around it. Public wants to know the reason for which
Government is avoiding transparency and refusing to divulge information.

It is to be noted that Prime Minister Narendra Modi is the ex-officio chairman; Union Home
Minister Amit Shah, Defence Minister Rajnath Singh and Finance Minister Nirmala
Sitharaman are the ex-officio trustees of the PM CARES Fund. 4 So the trust which is being
run by 4 Cabinet Ministers in their ex-officio capacities is being denied the status of ‘public
authority’. The public is entitled to know that how the fund is being operated, decision
making process of the trust and the measures which have been decided for ensuring that the
money is not being misused. Another question arises that why this separate fund was needed
when the Prime Minister’s National Relief Fund was already there. PM CARES Fund also
falls outside the ambit of Article 266(2) of the Constitution of India which mentions that all
public moneys received by or on behalf of the Government of India or the Government of a
state shall be credited to the public account of India or the public account of the state, as the
case may be. And the Government has already denied it from being public authority. This
gives rise to several questions like grant or necessity of a trust deed certificate; registration
under section 12(A)(a) of the Income Tax Act, 1961; registration under the Foreign
Contribution (Regulation) Act, 2010 considering the fund has received exemption from
provisions of both the aforementioned legislations.

The basic object of the Right to Information Act, 2005 is to empower the citizens and to
make our democracy work for the people in real sense. 5 Lack of transparency in the system
leads to a number of divergent interpretations based on vague speculations. The State
Emblem of India (Prohibition of Improper Use) Act, 2005 prohibit the improper use of state
emblem of India for professional and commercial purpose. PM CARES Fund not being a
public authority uses the state emblem. It means Central Government has authorised the fund
to the application of Emblem or its colourable imitation. If it is so then there appears to be an

4
https://www.pmindia.gov.in/en/about-pm-cares-fund/ (Visited on June 6, 2020)
5
rti.gov.in ( Visited on June 6, 2020)
absence of notification issued by the Government in the official gazette which is essential as
per section 11 of the Act. As per this section, the centre may make rules to carry out the
purposes of the legislation, in context of the PM CARES Fund.

On 2 June, Bombay High Court on hearing a petition has issued notice to the Central
Government and all the trustees of PM CARES Fund seeking a declaration of the amount
collected. Justice Sunil Shukre and Justice Anil Killor directed the Central Government to file
an affidavit within two weeks of time. The petition also claimed that as per the guidelines of
the PM CARES Fund, the Chair Person is supposed to appoint three more trustees. The
petition sought that at least two members from the opposition parties should be included in
the trust. Also, a PIL has been filed before the Delhi High Court seeking greater transparency
in the PM CARES Fund by bringing it under the ambit of the RTI Act.

So, concluding my article I want to say that every citizen has the right to know that how
much fund has been collected through PM CARES Fund and how the same is being
expended. Court must decide this matter and interpret to solve all the ambiguities. We are
living in a democratic republic. Democracy requires the transparency of information which is
vital to its functioning and also helpful to curtail corruption and hold Government and their
instrumentalities accountable to the governed. The RTI Act was enacted with certain
purposes. The purpose and intention with which any law is enacted is of great importance.
The dignity of that purpose must be maintained and I believe that Judiciary will not let
anybody defeat that purpose and intention.