Whether the PM CARES Fund will come under the ambit of RTI and the

lockdown imposed has violated any fundamental rights of the migrant

workers?

It is submitted that the PM CARES Fund will not come under the ambit of RTI, and the
lockdown imposed by the government has not violated any fundamental rights of the migrant
workers. The petitioner seeks to establish that, (A) the PM CARES Fund is not a public
authority under Section 2(h) of the RTI Act; (B) the lockdown imposed is not a violation of
Article 14, 19 and 21 of the constitution.

(A) The PM CARES Fund is not a public authority under Section 2(h) of the RTI Act

It is contended that the Prime Minister’s Citizen Aid and Relief in Emergency Situations
Fund’ (PM CARES Fund) must not be declared as a public authority under the ambit of RTI
Act, 2005; and to that effect, submissions are made that it fulfils the criteria of not being a
public authority under Section 2(h) of the RTI Act and it is not the duty of the government to
disclose each and every information.

“The mere “supervision” or “regulation” as such by a statute or otherwise of a body would

not make that body a “public authority” within the meaning of Section 2(h)(d)(i) of the RTI
Act. In other words…the control of the body by the appropriate Government would also be
substantial and not merely supervisory or regulatory.” 1 As far as the ownership of the fund is
concerned, the PM Cares Fund is created under a trust and hence the question of ownership
by the government does not arise.

The genesis of the PM Cares Fund has not followed the same course as that of PMNRF.
Though the Prime Minister made a public appeal via a press note and also on his Twitter
handle, the note clarified that PM Cares Fund has been set up as a Public Charitable Trust.
The inception of PM Cares Fund should not be attributed to a notification issued by the
government.

One area of controversy that has emerged in relation to the first part of the definition – i.e.
bodies created by law – was regarding whether entities registered under various laws become
public authorities merely by reason of their incorporation or registration. The Delhi High
Court has decided this issue, and unambiguously stated that the mere establishment of a body

1
Thalappalam Service Coop. Bank Ltd. v. State of Kerala
under a statute will not automatically render it a public authority for the purposes of the RTI
Act.2 In casu, although the PM CARES Fund is incorporated by the government of Indus but
mere establishment of body by the government will not make it fall under the ambit of RTI
Act as it was established as a public charitable trust.

Also, Supreme Court observation that “indiscriminate and impractical demands under RTI
Act for disclosure of all and sundry information would be counterproductive”. 3 In the
instant case, the Indus government has provided relevant information in respect PM
CARES Fund which can be seen on the official website of the government. Earlier,
the Comptroller and Auditor General’s (CAG) office had clarified that it wouldn’t audit
the PM-CARES Fund as it is ‘a charitable organisation’ and is also based on donations
from individuals and organisations.

Hence, PM CARES Fund is not a public authority so as under the Act only such information
which is held by or under the control of any public authority may be accessed by the general
public through RTI hence, it will not come under the ambit of RTI.

(B) The lockdown imposed is not a violation of Article 14, 19 and 21 of the constitution

It is submitted that the imposition of lockdown by the Government is in accordance with the
Constitution and hence, the Supreme Court should not hold it to be unconstitutional. To that
effect, the respondent seeks to establish that, (i) the lockdown is in consonance with Article
14 of the Constitution; (ii) the lockdown is in consonance with Article 19 of the Constitution;
and (iii) the lockdown is in consonance with Article 21 of the Constitution.

(i) The restriction is in consonance with Article 14 of the Constitution

The Supreme Court has held that Article 14 embodies a guarantee agains arbitrary State
actions and ensures fairness and equality in treatment. 4 The expression ‘arbitrary’ means in
an unreasonable manner, as fixed or done capriciously, or at pleasure, without adequate
determining principle, not founded in the nature of things, non-rational, not done or acting

2
National Stock Exchange of India Limited v. Central Information Commission, WP (C) No. 4748 of 2007
decided on 15 April 2010 by Delhi High Court
3
https://www.thehindu.com/news/national/coronavirus-pm-cares-is-not-a-public-authority-under-rti-act-pmo/
article31712146.ece
4
E. P. Royappa v. State of Tamil Nadu & Anr., AIR 1974 SC 555 (India); Maneka Gandhi v. Union of India,
AIR 1978 SC 597 (India); Ajay v. Khalid, AIR 1981 SC 487 (India).
according to reason or judgement, depending on the will alone. 5 The Indus Government order
does not satisfies the conditions for being arbitrary in nature.

In casu, the Indus Government imposed lockdown in order to ensure social distancing and to
control the rate of transmission of VID-19 as the Indus had started witnessing positive cases
of VID-19 in several parts of the country as by the first week of April 2020, there were about
6000 infections and over 210 deaths6. so, in order to control this epidemic the lockdown was
imposed.

The reasonableness of the restrictions are tested on the basis that they must not be arbitrary or
of an excessive nature so as to go beyond the requirement of the interest of the general
public.7 There must be a direct and proximate nexus or a reasonable connection between the
restriction imposed and the object sought to be achieved, and is such direct nexus is present,
there would be a strong presumption in favour of the constitutionality of the Act will
naturally arise.8 In the instant case, there is direct nexus with the lockdown imposed and the
object sough to be achieved as the objective of the lockdown is to control the transmission of
corona virus because it is increasing at a staggering rate.

The restriction imposed was not unreasonable as mere fact that some hardship or injustice is
caused to someone is no ground to strike down the rule as unconstitutional. 9 The Indus
Government order does not place any unreasonable restriction as the lockdown imposed is in
the interest of the general public to protect them from the impact of corona virus as World
Health Organisation (WHO) officially declared the outbreak of Covid-19 as a global
pandemic. Around two million people had been infected with the virus and 95,000 had lost
their lives to it by the first week of April, 202010 hence, the order is consonance with Article
14 of the Constitution.

(ii) The restriction is in consonance with Article 19(5) of the Constitution

Article 19(1)(d) of the constitution guarantees the citizens the right to move freely throughout
the territory of India.11 Article 19(5) states the State, in the interest of the general public, can

5
Sharma Transport v. Government of Andhra Pradesh, (2002) 2 SCC 188, ¶25 (India).
6
Page no. 1, Moot Proposition
7
M.R.F. Ltd. v. Inspector Kerala Govt. and Ors., (1998) 8 SCC 227 (India).
8
Kavalappara Kottarathil Kochuni and Ors. v. State of Madras and Ors., AIR 1960 SC 1080 (India), O.K.
Ghosh and Anr. v. E.X. Joseph, AIR 1963 SC 812 (India).
9
AP Cooperative Oil Seeds Federation Limited v. D Achyuta Rao, (2007) 13 SCC 320
10
Page no. 1, Moot Proposition
11
INDIA CONST. art. 19 §1, cl d.
make laws imposing reasonable restrictions on the exercise of the right guaranteed under
Article 19(1)(d).12

For adjudging reasonableness of a restriction, the Courts consider such factors as; the
duration and the extent of the restrictions; the circumstances under which, and the manner in
which, that imposition has been authorised. The nature of the right infringed, the underlying
purpose of the restriction imposed, the extent and the urgency of the evil sought to be
remedied thereby, the disproportion of the imposition, the prevailing conditions at the time
consideration enter into the judicial verdict.13

In casu, the lockdown was imposed for 21 days because the corona virus was increasing at a
staggering rate; the fundamental right has been restricted in order to curb the spread of corona
virus; the prevailing condition of the state may had become worse if the restriction on
movement was not imposed on time as the underlying purpose of the lockdown imposed is to
ensure social distancing and control the rate of transmission of VID-19 and also because of
the lockdown growth rate of the disease was slowed by 6th April to a rate doubling every six
days, and by 18th April, to a rate of doubling every eight days.14

The petitioner side may contend that after the declaration of lockdown millions of migrant
workers were stuck out of their native places 15 but during the lockdown, the Home Ministry
released guidelines saying that every state must ensure that the migrants do not walk on roads
or rail tracks. "States must counsel, provide food and shelter and assure them that they would
be able to travel on special trains," the guidelines said 16 and on 1st May, the Indian Railways
announced the launch of ‘Shramik Special’ trains for the migrant workers and others stranded
out of their native places.17

The Right guaranteed to a citizen by Article 19(1)(d) do not confer any absolute or
unconditional right. Each right is subject to reasonable restriction which the legislature may
impose in public interest. It is therefore necessary to examine whether such restriction is
meant to protect social welfare18 hence, in the instant case Indus Government imposed

12
INDIA CONST. art. 19 §5.
13
Chintaram Rao v. State of Madhya Pradesh, AIR 1951 SC 118
14
Page no. 1, Moot Proposition
15
Page no. 3, Moot Proposition
16
Page no. 4, Moot Proposition
17
Page no. 4, Moot Proposition
18
Papnasam Labour Union v. Madura Coats Limited, AIR 1995 SC 2200
restriction for the welfare of the people so that the government can control the rate of
transmission of VID-19 is in accordance of the Article 19(5) of the constitution.

(iii) The restriction is in consonance with Article 21 of the Constitution.

Article 21 lays down that no person shall be deprived of his life or personal liberty except
according to ‘procedure established by law’. The most important words in this provision are
procedure established by law.19 If to save hundreds of lives, one life is put in peril or if a law
ensures and protects the greater social interest, then such law will be regarded as a beneficial
law. It is the duty of the state to ensure maximum happiness to the maximum number as laid
down by Bentham.20 The order of Indus Government is according to procedure established by
law.

In Olga Tellis, the SC has emphasized that “procedure established by law for the deprivation
of the right conferred by Article 21 must be fair, just and reasonable”. The procedure
prescribed by law for depriving a person of his right to life must conform to the norms of
justice and fair play.21

In casu, the lockdown was imposed in order to ensure social distancing and to control the rate
of transmission of COVID-19 also for helping those who are suffering from this restriction
the Indus Government mandates all employers to pay wages of their workers on the due date
without any deduction, prohibits landlords from demanding payment of rent from tenants,
including migrants, for one month and imposes action against any landlord who forces
labourers and students to vacate their premises22 shows that the restriction imposed is fair,
just and reasonable.

Hence, as the procedure established is according to the law and there is no infringement of
right to livelihood as various governmental schemes were introduced to support the
marginalised sections of the society hence, the restriction imposed is in consonance of Article
21 of the constitution.

19
AK Gopalan v. State of Madras, AIR 1950 SC 27 (India).
20
ANALYSING PREVENTIVE DETENTION LAWS AND ARTICLE 21 Written by Yash Vithlani &
Keerthanaa B issued at- VOLUME 4 ISSUE 2 March 2018 www.ijldai.thelawbrigade.com
21
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
22
Page no. 5, Moot Proposition