• The Law Gazette

The Verity of the PM CARES Fund

In the wake of the pandemic COVID-19, the Indian Economy has reached an all-time low. The people do not have adequate funds to afford healthcare, the local markets have taken a tough beating and families are striving to sustain themselves. In such tumultuous times, citizens look up to the government to come to their aid. With the creation of Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM CARES) Fund, people are hopeful that they will be relieved of the hardships that this pandemic has brought to them. However, the creation of the Fund may be misleading.


LEGALITY UNDER THE RTI ACT, 2005

In relation to a recent application filed under RTI Act, 2005, which sought information on 12 points regarding the PM CARES Fund, the Prime Minister’s Office (PMO) denied to make public the details of documents relating to it. While refusing to provide information, the PMO has resorted to a 2009 order of the Chief Information Commissioner (CIC) in which the Commission had given its verdict regarding an RTI application, which sought information on multiple topics.[1] In 2007, Rajendra Singh, had filed an RTI at the CBI headquarters seeking information on a total of 69 points.


In the verdict, then CIC Wajahat Habibullah observed, “The issue hinges around the application required to be made for obtaining information u/s 7(1). Under this clause a CPIO, on receipt of ‘a request’ is expected to deal with it expeditiously when accompanied with a fee. It is, therefore, not open to the applicant under the RTI Act to bundle a series of requests into one application unless these requests are treated separately and paid for accordingly.


Many judgements in succeeding years were delivered in countless cases based on this verdict. In 2011, overturning earlier judgements, then CIC Shailesh Gandhi stated that ‘a single subject matter’ has neither been distinctly defined in the RTI Act, nor the rules and regulations framed thereunder. Therefore, the fundamental right to information of citizens cannot be barred nor unnecessary money be sought from them. Gandhi noted that no legal basis had been given by the then CICs for interpreting the term ‘a request’.[2] He was of the view that upon application of the rule of statutory interpretation laid down by the Supreme Court, the term ‘request’ must be given its natural meaning. In the absence of any means to ascertain ‘one subject matter’, the Public Information Officer (PIO) can provide information sought in the application while directing the applicant to file a separate RTI application pertaining to the different subject matter of the original application.


PMO’s second argument said:

The demands under RTI Act for disclosure of all and sundry information will affect the efficiency of the administration as 75% of the authorities should not be seen spending 75% of their time in collecting and furnishing information to applicants instead of doing their regular duties. Under RTI Act, the court directed the CBSE in 2016 to allow copies of answer sheets to students at not more than Rs. 2/page.[3] It is observed that government departments resort to this ruling of the apex court for refusing to furnish information, while there is no basis for a rejection. In the analysis of 17 verdicts of the Supreme Court on the RTI Act by Gandhi and lawyer Sandeep Jalan, it is observed that only 3.2% of the staff need to work for 3.2% of the time while responding to RTI applications.[4] However, PIOs of government departments keep denying public access to information while citing such reasons.


PUBLIC AUTHORITY

The Prime Minister National Relief Fund (PMNRF), founded in 1948, was established with public contributions to assist displaced persons from Pakistan.[5] The resources of the PMNRF are now utilized primarily to render immediate relief to families of those killed in natural calamities, to partially defray the expenses for medical treatment like heart surgeries, acid attack etc. The fund contains only public contributions. PMNRF has not been constituted by the Parliament. PM CARES Fund has a strong resemblance to the PMNRF (mutatis mutandis). In fact, with the preexistence of PMNRF the need for PM CARES Fund raises eyebrows.


The validity of both the funds as a public authority is undetermined. In Aseem Takyar v. Prime Minister National Relief Fund (2016), an appeal was filed before the Delhi High Court contending that PMNRF being a ‘public authority’ must come under the jurisdiction of the Right to Information Act, 2005. The plea was accepted and an appeal was made. In the appeal, the fund contended that “It finds its genesis in a personal appeal made through a press note dated 24.01.1948 by the then Prime Minister, Pt. Jawaharlal Nehru. This, according to the Fund, was a personal appeal/request/ and not an order/decision made by the Government of India. The Fund further contended that this appeal/request/decision was not a decision of the Central Government and was thus not made in the name of the Hon’ble Governor General of India, the head of Central Executive, as was then required for decisions of Central Government.


The government took the view that the fund, although created at the instance of public office, was not the product of any executive order, therefore functions as a ‘private trust’ with high constitutional functionaries as ex officio ‘trustees’. Although this official reasoning was rejected and the petitioner’s plea accepted by the single bench, due to a consequent split in the division bench, no decision was reached regarding the status of the PMNRF.


However, if the take of government is that PMNRF is ‘private’ in nature, the access to information still cannot be denied because Section 19 of the Indian Trusts Act, 1882, mandates the trustees to present full and accurate information of the amount and state of the trust property to the beneficiaries. As any ‘private trusts’ the prime minister heads are formed for the benefit of the public at large, every citizen is a constructive beneficiary; hence the ‘private trust’ in this case is a ‘public charity’ u/S 92 of the Code of Civil Procedure.

Therefore, such ‘public charities’ are amenable to judicial administration upon application by two or more members of the public, seeking alteration in the composition of trustees, directing disclosure of trust accounts, or even redirecting trust property. By corollary, this applies to PM CARES Fund too.


CONSTITUTIONAL VALIDITY

An effort was made to assail PM CARES on the ground that the fund was created without following constitutional procedures dealing with the Consolidated Fund of India and Contingency Fund of India.[6] The petition was summarily dismissed by the Supreme Court as lacking merit. However, a careful consideration of the law and constitution yields a possibility of controversy. As per the constitution, the executive cannot spend what the legislature cannot vote upon; therefore, all monies must be regulated by the vote of parliament.


Under Article 283 of the constitution, three distinct heads are envisioned – the Consolidated Fund of India, the Contingency Fund of India, and public accounts. There exists no other head under which monies can be received by the Union. The Consolidated Fund under Article 266(1) is the repository of all revenue and capital receipts, whereas a Contingency Fund under Article 267 is an imprest for unforeseen expenditures, and a public account under Article 266(2) is the residuary corpus under government deposit. Article 266(2) read with 284(a) provides that monies received or deposited with the government, other than revenues or public monies raised, are payable into a public account. Therefore, monies deposited under its administration are constitutive of a public account. Hence, public donations, deposited on representation of public office and administered through a deep and pervasive governmental control, invariably fall under Article 266(2).


Such an understanding fits in with the character of these funds as ‘trusts’. Under Sections 5, 6, and 8 of the Indian Trusts Act, the trustees merely hold and administer the trust property for the ultimate transfer to the beneficiaries. Therefore, in case of PMNRF and PM CARES, once the trusteeship is de facto transposed to the state, the trust property is de jure transposed as a public account under Article 266(2). Unlike the Consolidated Fund of India, which requires an ex ante vote, and the Contingency Fund of India, which requires an ex post vote, a public account is exempt from routine legislative rigors. Therefore, administrative expediency that crises like a national disaster or a pandemic require does not run antagonistic to the constitutional framework.


CONCLUSION

Selectively answering questions favorable to their cause and refusal to answer important questions has become government’s repetitive habit. In the present case, the furnishing of information will only invoke people’s deeper trust in the system. The evasive methods of the government has made people doubt the intentions of the government. From a financial perspective, funds in a public account result in net gains to the government on account of the interest rate difference between what it pays on domestic borrowings and the interest it is able to earn on the unspent amount in such funds.


ENDNOTES

[1] Shri Rajendra Singh vs. Central Bureau of Investigation (CBI) (20.07.2010 - CIC) : MANU/CI/1367/2010

[2] Gurudevdatta VKSSS Maryadit and Ors. Vs. State of Maharashtra and Ors. (22.03.2001 - SC) : MANU/SC/0191/2001

[3] CBSE Vs. Aditya Bandopadhyay (2011) 8 SCC 497

[4]https://satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf

[5] www.pmindia.gov.in

[6] Manohar Lal Sharma vs. Narender Damodardash Modi and Ors. (13.04.2020 - SC Order) : MANU/SCOR/24524/


ABOUT THE AUTHOR

This blog has been authored by Unnati Rathi who is a 3rd Year B.A., LL.B. (Hons.) student at ILS Law College, Pune.


[PUBLICATION NO. TLG_BLOG_20_1904]

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