ABSTRACT
PM CARES fund is created with objective to help the people who are adversely affected by the Covid 19, pandemic. However it come in controversy when PMO office denied it as a public authority and refused application of right to information act 2005 on this fund. So this article throws a light on what is public authority according to the law of land. This article also deals with what are the substitutes to PM CARES Fund to ensure transparency of funds and accountability on the part of the government.
The concept of right to information has its root from the 16th century as in the year 1597 Francis Bacon said, “Information is the oxygen of democracy, it invigorates wherever it percolates.[1] And its significance in 21st century is upheld by justice Krishna Iyer, according to him “The citizens’ right to know the true facts about the administration of a country is one of the essential ingredients of a country and also for a democratic State. If there is an open government where there is full access to information regarding functioning of government then only the participants of democracy i.e. people can play an important role in the democracy.[2]
Amid pandemic PM CARES Fund (Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund) was created on 28 March 2020, for dealing with emergency situations, like COVID-19. On 1 may 2020 for transparency in funds, an application under right to information act has been filed to get the information regarding the PM CARES fund. However, on 2 June 2020 the PMO refused to give the information on the ground that PM CARES is not a public authority under the ambit of RTI Act. Hence they denied applicability of right to information.
PM CARES FUND: A PUBLIC AUTHORITY?
Although recently PMO office has rejected PM CARE FUNDS as a public authority by the PMO but juxtaposition arises when we look at the definition of public authority given in RTI act 2005. According to it “public authority” means any authority or body or institution of self-government established or constituted,—
- or under the Constitution;
- by any other law made by Parliament;
- by any other law made by State Legislature;
- by notification issued or order made by the appropriate Government” and includes any—
Body owned, controlled or substantially financed;
Non-government Organization substantially financed, directly or indirectly by funds provided by the appropriate Government
The PM Cares Fund does not fall within the definition under category a, b, c and ii, because it has not been constituted under the Constitution or by Parliament. We are left with two conditions:
- Body created under notification or order issued by government;
- Body owned, controlled or substantially financed by the government.
As per the decision of Delhi High Court in National Stock Exchange of India Limited v. Central Information Commission, [3] is noteworthy, wherein the Court held that the three conditions – owned, controlled, and substantially financed, are distinct. Even if one of the three is satisfied by a body, it would be sufficient to declare it a public authority.
PM CARES fund is established through a circular issued by the government of India on 28 March 2020. Furthermore, the Trust of pm care funds comprised of the Prime Minister who is the ex-officio Chairman of the PM CARES Fund, and the Minister of Defence, Minister of Home Affairs and Minister of Finance, Government of India are ex-officio Trustees of the Fund. So this body is completely owned and control by the government itself. Therefore it should come under the purview of public authority and public should have right to get information regarding this.
Consideration of PM CARES Fund within the ambit of RTI act 2005 become necessary for transparency.As pm care fund gave 100% exemption under Section 80 G of the Income Tax Act 1961 Donations to PM CARES, Fund will also qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the Companies Act, 2013 and PM CARES Fund has also got exemption under the FCRA and a separate account for receiving foreign donations has been opened. Therefore it will create a large pool of money that would be handled properly without any corruption on the part of the government.
CONSTITUTIONAL ASPECT OF PM CARE FUND AND RIGHT TO INFORMATION
The right to information regarding PM CARES Fund should be mandatory as this fund is not being audited by the Comptroller and auditor general of India which hampers the transparency of the fund and accountability of government. In case Auditors are being appointed by the PM CARES Fund committee that would be against the principle of natural justice according to which no one can be a judge in his own case. So to secure natural justice we have to analyze the establishment of the act.
Nevertheless, the problem is in the establishment of the act per se. Because as per the constitution of India government of India can be owned and control three Accounts which is being audited by CAG. Under Article 283 of the constitution, only three following headings have been envisaged and there exists no other head under which monies can be received
The Consolidated Fund under Article 266 (1) is the repository of all revenue and capital receipts,
- A Contingency Fund under Article 267 is for unforeseen expenditures, and
- A public account under Article 266 (2) is the residuary corpus under government deposit.
So pm care fund should be made a part of the public account of India since all public money other than those under consolidated fund received by or on behalf of the Government of India or the Government of a State shall be entitled to the public account of India or the public account of the State. Another fund like national disaster relief fund has been made under the ambit of public account so this fund is open for information to all as well as being audited by the CAG.
MUTATIS MUTANDIS OF PM CARES FUND
In India similar to the PM CARE fund, two more funds also exist that are PM NRF and NDRF. PM NRF FUND (Prime minister’s national relief Fund), The Prime Minister Relief Fund was set up in 1948 to assist the displaced peoples from Pakistan at the time of Partition by prime minister Jawahar Lal Nehru shares similar traits with PM CARES Fund such as no budgetary support, exemption from income tax, the permission of foreign contributions and honorary service of those involved in the functioning of these trusts.
PMNR fund is also neither audited by CAG nor comes under the ambit of the RTI Act. The question of infirmity was first raised in 2016 before the Delhi Act, 2005 high court in Aseem Takyar v. Prime Minister National Relief Fund. The petitioner claimed that the PMNRF, being a ‘public authority’, must come under the jurisdiction of the Right to Information Although this official reasoning was rejected and the petitioner’s plea accepted by the single bench, the consequential split among the division bench in the appeal , the matter did not attain finality and so the PMNRFs status as a ‘public authority’ has still not been settled. Therefore PM NRF fund can’t vanish the loopholes of PM CARES Fund.
Second Fund that can be used as replacement for PM CARES Fund is NDRF Fund because The PM CARES fund has been the subject to several controversies since it was set up, mainly due to its lack of transparency and accountability. The Prime Minister’s Office (PMO) has declared that the fund, like the PM NRF, does not fall under the jurisdiction of the Right to Information Act, 2005. NDRF() which is meant to allow individuals or institutions to contribute funds towards handling emergency situations, is a transparent system and the funds collected under it will be subject to a statutory audit by the CAG unlike the ‘independent auditor’ appointed without a transparent process to audit PM CARES and will also come under the ambit of RTI Act 2005.
As transparency and accountability holds much significance in any democratic country Therefore not only on papers but also in practical phenomenon we should give importance to the right to information as fundamental right under article 19 of Indian constitution and maintain the democratic spirit of preamble. One such act to ensure this is to include PM CARES fund as well as PM NRF under the ambit of RTI 2005 as these funds satisfied the conditions mentioned for a public authority in the RTI Act 2005. Because the principle of democracy as per Abraham Lincoln is government of the people, for the people and by the people, in same way PM CARES fund is made by the people through donation, is made for the people who are adversely effected by pandemic but it is still not a fund of the people as only PM and other minister have access to all the information regarding this fund, only some official knows how the fund is being used. After giving the right to information to the people, this fund can be truly called as fund of the people.
Author(s) Name: Ritika Daga
[1] Good governance and right to information: a perspective, journal of the Indian Law Institute, Vol. 54, No. 4 (October-December, 2012), pp. 506-519.
[2] V.R. KRISHNA IYER, FREEDOM OF INFORMATION 86 (1990.
[3] WP (CIVIL) NO. 4748 OF 2007
