Article 19(1) under Part III of the Indian Constitution protects the "Right to Information" as a fundamental right.
INTRODUCTION
Article 19(1) under Part III of the Indian Constitution protects the "Right to Information" as a fundamental right. It is a statutory right granted by the Right to Information Act of 2005. The fundamental motivation for making the Right to Information a statutory right was to ensure even an average citizen could obtain any information held by government agencies. As a result, anyone can approach any governmental machinery for information under this Statute.
Recently, the PM CARES Fund came into the limelight questioning whether it can be listed as a public authority under the RTI Act, 2005, when an appeal contesting the legality of the PM CARES Fund was challenged before the Supreme Court.
PM CARES FUND
The Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES FUND) was established on 27th March 2020 where the Trust deed of PM CARES FUND has been registered under the Registration Act, 1908 in New Delhi. As per the Trust Deed, the Board of Trustees included Prime Minister of India, Narendra Modi as the ex-officio Chairperson and Minister of Defence, Rajnath Singh; Minister of Home Affairs, Amit Shah, and Minister of Finance, Nirmala Sitharaman in the Government of India as the ex-officio trustees. Apart from this, the Prime Minister has the authority to nominate three trustees from the fields of research, health, science, social work, public administration, or philanthropy, so that the Board of Trustees has a total strength of more than seven but not less than four members. Those who are appointed as trustees do so on a pro gratis basis for the benefit of the fund.
The PM CARES Fund is a public charity foundation that was established in the aftermath of India's COVID-19 outbreak. The Trust's main goal was to provide financial aid to the affected people, as well as to provide relief and assistance to the concerned people and the government in the event of a public health emergency or any other type of emergency, such as the construction of healthcare, pharmaceutical, or other necessary infrastructure facilities.
The Fund is exclusively funded by voluntary contributions from Indian and International residents, as well as organizations, CSR from Companies, and Public Sector Undertakings. All of these donations are tax-free under Section 80(G) of the Income Tax Act of 1961, and the fund is likewise tax-free under Section 10(23)(c) of the Income Tax Act of 1961. Micro-donations are also possible through the Fund.
Though the trust refused to make the donations public, a statement on the website in September 2020 stated that during the fiscal year 2019-20, an amount of Rs. 39.68 lakhs were collected and an amount of Rs. 3100 crore was granted from the PM CARES Fund.
LEGAL DISPUTE ON PM CARES FUND
When an Advocate filed an RTI application requesting details on the PM CARES Fund, and also when an L.L.M student from Azim Premji University in Bengaluru filed another RTI application seeking details on the constitutionality of PM CARES Fund, the legality of the PM CARES Fund was called into question. The Union Government claimed in both cases that the PM CARES Fund does not fall under the definition of "public authority" under the RTI Act, 2005, and so is not obligated to provide the information requested in the applications.
PUBLIC AUTHORITY UNDER RTI ACT
The term "public authority" is defined in Section 2(h) of the RTI Act, 2005 to include any authority, body, or institution of self-government established or constituted by or under:
The constitution;
Any other law passed by the parliament;
Any other law passed by the state legislature; and
Any notification or order issued by the appropriate government.
"Body owned, controlled, or substantially financed" was also included, as well as "non-governmental organization significantly financed directly or indirectly by funds granted by the functional government."
In Thalappalam Service Corp. Bank Ltd. v. the State of Kerala, it was held that when a body is "substantially controlled" by the relevant government, it is not simply regulated or overseen by it. The RTI Act of 2005 elevates the organization into a public authority.
ARGUMENTS BY THE UNION GOVERNMENT
The Union Government contended that because the PM CARES fund was established as a charitable trust, third-party information could not be disclosed.
PM CARES fund is not a public authority.
It is not permissible to disclose third party information, regardless of whether the trust is a "State" or other authority within the meaning of Article 12 of the Indian Constitution, and whether it is a "public authority" within the meaning of Section 2(h) of the RTI Act, Section 8 in general, and provisions contained in subsection (e) and (j) in particular, of the Right to Information Act.
They further claimed that the trust operates in a transparent manner and that its funds are audited by a chartered accountant appointed by the Controller and Auditor General of India.
CRITICAL ANALYSIS
It is explicitly stated in the Trust Deed that the Prime Minister of India would serve as ex-officio chairman and that the three cabinet ministers will serve as ex-officio trustees, making the fund a public authority under the RTI Act, 2005.
When the Finance Ministry's Revenue Department requested its employees to donate a day's wage, the fund's nature was questioned. The trustee, on the other hand, claims that the gifts or contributions are entirely voluntary and come with no strings attached.
The Prime Minister's National Relief Fund (PMNRF), which is more accountable and transparent, was already operational and provides rapid relief to persons affected by natural and man-made disasters. As a result, the need for another similar fund named the PM CARES Fund remains unclear.
There have been numerous allegations about the fund's expenditure transparency, which is deeply troubling.
The trustees are authorized by Section 19 of the Indian Trusts Act to provide the beneficiaries with accurate and timely information about the amount and state of the trust property. All information about the PM CARES Fund should be accessible as a result of this mandatory access, as per Section 2(f) of the RTI Act.
The fund seems to have a myriad of discriminatory provisions, as it deprives the state government or the Chief Minister’s Relief Fund of the CSR contribution.
Another point of contention with the perspective is that the already existent National Disaster Response Fund (NDRF) and State Disaster Response Fund (SDRF) are statutory entities for a similar purpose that fit under the RTI Act's definition of "public authority" and are audited by the CAG. Rather than creating a contentious and secret fund for the cause, Prime Ministers and respective Chief Ministers may have appealed for donations to be collected in already established statutory institutions[3].
CONCLUSION
Despite the fact that Union Government claims the PM CARES Fund is not a government agency, the official website states that the PM CARES Fund is a "Public Charitable Trust" headed by the Prime Minister. A fund that was established with the best of intentions of assisting the afflicted people is facing numerous challenges, including allegations of corruption and favoritism. When a similar fund, named Prime Minister's National Relief Fund (PMNRF), is already in operation, the necessity for a new fund with the same purpose remains unclear.