POLITICAL TENSION BETWEEN HONG KONG AND CHINAJuly 8, 2020
TERRITORIALISATION OF DATAJuly 9, 2020
On the 28th of March, 2020, ensuing the unfortunate events of the COVID-19 pandemic, an initiative was taken by our Hon’ble Prime Minister to set up the Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) with the primary motive to preclude the aggravation of coronavirus outbreak by providing relief efforts and subserving the economic unrest among citizens due to the nation-wide lockdown. Within a matter of days after establishing the fund, an application under Right to Information (RTI) was filed by a law student from Bengaluru namely, Harsha Kandukuri, requesting the Prime Minister’s Office (PMO) to furnish all the relevant details (i.e. Trust Deed, All Government Orders, Notification & Circulars related to the creation and operation) of the PM CARES Fund. The individual appealed on account of non-response from the PMO for a period surpassing 30 days, and received a reply in the negative on 29th May, stating that the fund was not a matter of ‘public authority’ under the scope of S. 2(h) of the RTI Act 2005, and that the PM CARES Fund website provides relevant information concerning the fund. Analogous statements concerning the Prime Minister’s National Relief Fund (PMNRF) were previously iterated in the 2018 case, PMNRF v. AseemTakyar. Another similar application filed by an environmentalist namely, Vikrant Tongad was rejected by the PMO upon citing the Hon’ble Supreme Court’s observation in the case CBSE v. Aditya Bandopadhyay where it was asserted as follows: “Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information.” Though authoritative, the responses have led to questioning the jurisdiction and scope of RTI Act.
Juxtaposing PMNRF & PM CARES Fund
Now, to address the prevalent confusion concerning the institution of the PM CARES Fund when there already exists an authoritative and kosher Prime Minister’s National Relief Fund (PMNRF); the latter conspicuously fails to appreciably tackle pandemic situations and a separate fund established to predominately provide financial aid to patients across the nation during the global COVID-19 pandemic is exceedingly critical. Even though the nomenclature alone may indicate the closely kindred nature of the PM funds, there are other distinctly distinguishable grounds that lie within the intricate constructions of the two national funds.
The PMNRF was established as a result of India’s partition in the year 1948 with an intention to provide assistance to refugees and victims of the partition. Today, the purpose of the PMNRF is to utilize its resources in order to render immediate aid and assistance to victims of riots, rampages or accidents and to provide instant relief to individuals and families who have suffered the disastrous ramifications of natural calamities like earthquakes, flood, cyclones etc. In addition, help is rendered to alleviate financial issues for major medical treatments like kidney transplantation, heart surgery, acid attack and the treatment of cancer. It is pertinent to note that the parliament is not responsible for constituting the PMNRF and was instituted upon a personal appeal and request made through a press note by the then Prime Minister, Pt. Jawahar Lal Nehru on 24th of January, 1948. It is recognized as a trust in accordance with the Income Tax act, 1961. In 1985, the committee which was originally responsible to manage the PMNRF, entrusted the complete administration of the PMNRF to the Prime Minister. Therefore, the disbursal of funds is exclusively under the discretion of the Prime Minister.
The PM CARES Fund in comparison, is a national fund committed to deal with any kind of distress situation or an emergency like the current global COVID-19 pandemic. The fund is headed by the Hon’ble Prime Minister in his official capacity and can exercise his authority to elect three distinguished individuals to the Board of Trustees. In this case, the fund is subject to control by the Ministers of Finance, Defense and Home Affairs as ex-officio trustees. The fund’s officials contend that the need for approval of the parliament is a prerequisite in order to expend from the Consolidated fund of India in cases of emergence. This would indeed gravely result in a delayed and unfortunate state of affairs. The fund has startled the masses subsequent to surpassing 6,500 crores in pledged donations within less than a week. This figure is 3 times the estimated amount collected by the PMNRF. Furthermore, to tackle the severe economic unrest across the nation, the fund has resorted to an ad-hoc approach that mandates CSR contributions and accepts foreign donations which is exempt from The Foreign Contribution (Regulation) Act. Therefore, the grounds for instituting the PM’s Funds are deemed legitimate and does not concern a matter for dispute; however, the exceedingly important question, is whether inspection of the PM CARES Fund should be outside the purview and knowledge of the Comptroller and Auditor General of India (CAG) mandated under Article 151 of the Constitution? The most dubious feature of the fund is the unwarranted restriction from being audited by CAG officials. Hence, this brings us to discern the degree of opaqueness of the fund.
Explicating the Fund’s Opaqueness
Though the accounts and statements of income and expenditure of the PMNRF is publicly available; time and time again, the rejection of RTI applications by the PMO and corresponding decisions taken by the Hon’ble Supreme Court throws light on the well-established fact that the PMNRF and the PM CARES Fund are not mandated to provide details or disclose identities of their beneficiaries or donors under RTI Act. Subsequent to a PIL submitted by thePresident of the Supreme Court Bar Association, Senior Adv. Dushyant A. Dave appearing as counsel for Centre for Public Interest and Litigation (CPIL), a notice has been issued by the Hon’ble Supreme Court on 17th June 2020, directing the Central Government to furnish a response within 4 weeks, to a plea seeking the transfer of PM CARES Funds into the National Disaster Response Fund (NDRF). The Opaqueness of the PM CARES Fund was strongly disputed by the counsel for the petitioners (CPIL).While drawing concerns to auditing the PM Funds, Adv. Dushyant Dave emphasized on the significance of CAG’s audit as a constitutional requirement and argued against the PM Funds in a press release while maintaining, “all funds which are raised and given by the people in whatever form, even if it is in the form of a relief fund, must be subject to audit automatically.”
Rules 47(2)(viii) and 47(2)(xviii) under the Rules of Procedure and Conduct of Business in Rajya Sabha along with Rules 41(2)(viii) and 41(2)(xvii) under the Rules of Procedure and Conduct of Business in Lok Sabha, were invoked by the appellant in PMNRF v. Aseem Takyar while trying to prove the distinct character of the PM’s Fund. It was contended by the appellant that discussions concerning the PM’s fund are not permitted for any questioning in the parliament mainly with regards to the fund’s operations. These contentions further add to the opaque nature of PM Funds. Besides, what could be plausible reasons to nip it in the bud and preclude one from practicing one’s right to information?
Conversely, the RTI Act provides for exemptions to disclose certain information subject to S. 8 with an enumerated list of clauses under S. 8(1). The donations made to the PM CARES Fund by individuals or organizations are accepted as donations arising out of a fiduciary relationship. In the case of CPIO, Supreme Court of India v. Subhash Chandra Agarwal, the court construed “Fiduciary Relationship” with reference to the case CBSE v. Aditya Bandopadhyay; “fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business”. S. 8(1)(e) of the RTI Act declares the exemption from disclosure of information that is available to a person under his fiduciary capacity, unless the disclosure of said information is warranted by a larger public interest. Therefore, there is a need for acknowledging the exclusion of certain disclosure to the public in accordance with S. 8(1)(e) read along with S. 8(1)(j) of the RTI Act.
PM Fund not a ‘Public Authority’?
In the case of PMNRF v. Aseem Takyar, Hon’ble Justices S. Ravindra Bhat and Sunil Gaur of the Delhi High Court arrived at a split verdict where the former felt that the PMNRF is a public authority as per the RTI Act while the latter felt otherwise. This case has hence been listed for hearing on the 15th of July 2020 by a third judge referred by the Chief Justice of Delhi High Court. In the aforementioned case Hon’ble Justice S. Ravindra Bhat contended that the PMNRF is not a public authority on grounds that the fund is deemed as a trust and is not financed, owned or controlled by the Government of India. He further drew a connection to a 2012 case, in Secretariat v. Nitish Kumar Tripathi, public funds were explicated as funds that are a result of state imposed and collected taxes, cess, service charges, duties etc. from its citizens. Therefore, the existence of government control in the management of the PMNRF is clearly lacking and could not be considered as a public authority.
In order to arrive at an unbiased and comparative analysis of both perspectives; contrary to aforesaid, with regards to the PM CARES Fund, the fact that the fund is a “Public Charitable Trust” as clearly mentioned under the fund’s website is implied proof that the beneficiaries and donors of the trust are the general public and not any particular individual or entity. Furthermore, the page dedicated to advice information seekers or RTI applicants, expressly states that the CPIO authorised under the PMO is required to provide information only related to matters under the control of the PMO and concerned with its operations and functions. The PMNRF and PM CARES Fund is explicitly concerned with the operations and functions of the PMO; hence, it is obligated to furnish related information. The appointment of the Ministers of Finance, Defense and Home Affairs acting under their ex-officio capacity widens the scope and strengthens the construction of Ministerial Office as a public authority. Besides, the use of the State Emblem of India (The Lion Capital of Ashoka) subject to the provisions of The Emblems and Names (Prevention of Improper Use) Act, 1950, in PM Funds’ advertisements, social media accounts or any other mode of soliciting the general public validates the authorization of the central government. Moreover, the practice of collecting donations and maintaining the accounts of all payment receipts cannot defeat the mere truth that this is conducted by the officials acting under public office of the Hon’ble Prime Minister.
Notwithstanding the aforementioned, even though the body is not a public authority, but rather a Private Trust, it is still amenable to further provisions of law. The right to be informed can be effectuated by the general public even for private trusts. The trust is again bound under S. 19 of the Indian Trusts Act, 1882 to maintain accurate, complete and clear records of all trust property and to provide the beneficiaries with accurate records and information concerning the state and amount of the trust property.
Conclusion: The Indispensability for Transparency
It can be rightly asserted that the Hon’ble Prime Minister acts under the official capacity of the Ministerial office while proclaiming matters concerning the PM Funds. Hence, the governance of public funding through donations, corporate social responsibilities etc. to the PM CARES Fund and PMNRF should be strictly subject to Article 266(2) read along with Article 284 of the Constitution. From an economic point of view, these government funds gain a better financial footing as public funds rather than private trust funds on account of interest rate differences resulting in the government securing net profits.Furthermore, there is a growing ubiquitous concern for the constant influx of RTI applications. Credible reasons that support non-disclosure under RTI Act is the need of the hour. It is highly imperative to enforce the relevant provisions under the RTI Act on PM funds in order to fill up the gaps of public uncertainty. Hence, ensuing this strictly unbiased legal approach, the author asserts that PM Fund’s should not be shunned from the ambit of RTI Act, 2005.
ABOUT THE AUTHOR
Athith Pradeep is a 5th year BBA.LLB (Hons.) law student of Alliance University, Alliance School of Law, Bengaluru, specialising in business law with a keen proclivity towards Commercial Arbitration, Intellectual Property & Technology Laws.
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