Updated: Jan 24
Delhi: Since its formation, the PM CARES Fund has triggered a heated debate about transparency in its necessity, operations and donations.
The Government of India maintains that the Fund is “not a public authority” and is not covered by the Right to Information Act (RTI), 2005. The Supreme Court, in Centre for Public Interest Litigation vs Union of India (2020), noted that the Fund is not a government fund and is not subject to audit by the Comptroller and Auditor General (CAG), the government auditor.
However, for about two months between 27 March and 26 May 2020, the ministry of corporate affairs treated the PM CARES Fund (a popular acronym for the Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund) as one established by the central government, as The Wire reported on 22 August 2020. After that, a retrospective amendment to the Companies Act, 2013, took away the need to treat it as a Fund set up by the central government (while still leaving it eligible for receiving CSR funds).
The PMO’s assertion that the Fund is not a public authority for RTI applications came after the amendment, though it notably skates over certain sections of the definition, for which PMO has put ample evidence in public.
A “public authority” under section 2(h) of the RTI Act is an entity created by the Constitution, legislature or government and includes a “body owned, controlled or substantially financed” (including NGOs) by the government.
Taking the government’s assertion at face value that the PM CARES Fund is a public charitable trust and not a government entity, the question arises: How is the government allocating public resources for the Fund’s benefit?
A Charitable Trust Uses State Resources
The PM CARES Fund uses a gov.in domain name (see below), administered by the National Informatics Centre and registered by the PMO (both government departments staffed by civil servants).
Assigning Government Officers for Administration and Legal Defence
The joint secretary (administration) in the PMO is the secretary of the Fund. He is assisted by a director/deputy secretary in the PMO, according to the PM CARES Fund website. Both positions are honorary and are clearly meant to be exercised on an ex-officio basis, meaning any PMO official in an identified position will automatically be an official of the PM CARES Fund.
The Prime Minister’s National Relief Fund has a similar structure and is liable for the same questions: using state resources but insisting that the RTI Act does not apply to them. A reasonable citizen might also ask why an undersecretary in the PMO is collecting contributions for a public charitable trust that has, officially, no truck with the government.
Apparently, the work generated by the Fund in responding to RTI queries alone is so much that the PMO is invoking statutory conditions in the RTI Act on the ground that responding would “disproportionately divert the resources of the office”. The reason the PMO decided to take on this evidently onerous obligation for the Fund in the first place—or retain it after the MCA and Supreme Court decided it was not a government fund after all—has not been placed in the public domain.
The Press Information Bureau announced the Fund’s creation on 28 March 2020. By its own admission, the PIB is “the nodal agency of the Central Government to disseminate information to the print, electronic and online media on government’s policies, programme initiatives, welfare activities and achievements”.
The PMO deployed the Solicitor General of India to defend the PM CARES Fund in the Delhi High Court and the Supreme Court. Law officers of the government generally do not take briefs from non-government entities for the duration of their tenure.
Yet, the government freely parted with one of its most senior law officers for a case related to a public charitable trust, when it has ample important litigation pending before superior courts.
A Charitable Trust Based In The PMO
It is not clear why the government allowed a government department, in this case the PMO, to be used as the head office for a public charitable trust—a facility also offered to PMNRF—that the government has fought to keep out of the RTI Act.
Nor is there a readily available explanation for why “The Prime Minister’s Office provides such administrative and secretarial support to the Trustees for the management and administration of the Trust, as may be required by the Trustees” (PM CARES FAQs).
The agreement by which the PMO holds the copyright for the website of the public charitable trust is not publicly available.
Holding a copyright brings an expensive responsibility to defend it, if necessary: money for investigation, lawyers and litigation costs. Why the PMO would undertake this responsibility for a body it neither owns, controls, nor substantially finances is not clear.
Considering the government owns the infrastructure, both cyber and physical, on which the trust is operating and has lent PMO staff, senior bureaucrats, and the Solicitor General himself (all obviously controlled by the government) to the Fund, it is safe to conclude that the Fund is a public authority (even if it is not a government entity) for the purposes of the RTI Act.
India’s National Symbol And Patronage By The State
The PM CARES Fund breaks at least two laws that govern the use of the State Emblem of India—the adaptation of the Lion Capital of Asoka at Sarnath with four lions mounted back to back, and the words Satyameva Jayate below—and the name and likeness of the prime minister, if it holds to its assertion that the Fund is not a government entity.
The State Emblem of India (Prohibition of Improper Use) Act, 2005, and its rules prohibit using the emblem “to create an impression that it relates to the government” without government permission and prohibit any non-governmental organization from using the emblem altogether. The Emblems and Names (Prevention of Improper Use) Act, 1950, prohibits the use of the national flag, the name, emblem, and seal of the government of India, the name and picture of the prime minister without government permission.
The PM CARES Fund website prominently displays the title and picture of the Prime Minister, the national flag, and the State Emblem of India (see below). It is unclear from publicly available information whether it has the necessary permissions for any of these uses. For the State Emblem, the 2007Rules made under the State Emblem of India (Prohibition of Improper Use) Act prohibit any non-governmental organisation from using the emblem unless authorised, and no provision for such authorisation exists in the rules or the Schedules.
This set of circumstances yields two possible conclusions: one, the Fund is a government authority using privileges accorded only to government entities. Two, a public charitable trust with the Prime Minister and senior Cabinet Ministers as trustees is in violation of the law involving protected national symbols.
It is fair to say that these public functionaries would conduct their activities, as functionaries and as private citizens, within the law, which means that the Fund, by its use of protected national symbols, is a body owned and controlled by the government. Their public assertions and the Supreme Court’s decision seem to suggest otherwise.
A Close, Intricate Link With The Government
The PM CARES Fund has pride of place on the homepage of thePrime Minister’s official website (pmindia.gov.in), hosts a direct line to the payment portal, and an identical “About” page.
It is also listed as one of only three funds elsewhere on the site, helpfully, under the heading “PM’s Funds.”
Donations to PM CARES Fund count as Corporate Social Responsibility (CSR) spending by companies as fulfilment of their legal obligations. It is unclear how a public charitable trust, and this particular public charitable trust with senior government functionaries as Trustees specifically, was accorded this privilege, at the expense of various socio-economic projects that benefited from CSR funding.
The President, Vice President and every judge of the Supreme Court donated, in part or whole, a month’s salary within three days of the public unveiling of the Fund, showing significant support by Constitutional functionaries.
Rajya Sabha Chairman Venkaiah Naidu and Lok Sabha Speaker Om Birla wrote to MPs within a week of the Fund’s establishment requesting donation of a month’s salary and Rs 1 crore from their MPLADS (Members of Parliament Local Area Development Scheme) funds, allocated for development works in an MP’s constituency directly benefiting the public.
The Army, Navy, Air Force and employees of the Defence Ministry donated a day’s salary, amounting to Rs 500 crore, again within two days of the Fund’s public unveiling. A few days later, this was followed by employees of the ministry of home affairs, central police organisations and certain Union Territories donating a day’s salary amounting to Rs 89 crore.
Donations made by government employees have been described as “voluntary” and duly thanked by senior functionaries, including the prime minister. Reports that donations would be mandatorily made unless employees specifically “opted-out”, with a written refusal, suggest otherwise. How many employees will record in writing their refusal to what appeared a great government endeavour with participation from the executive, the legislature and the judiciary?
It is unclear why the government made deductions directly from salaries, instead of permitting employees, to donate to a public charitable trust. It is similarly unclear why government circulars appealing for donations to the Fund were sent to government employees when it does not habitually do this for non-government entities.
Defence Minister Rajnath Singh personally “approved” a proposal for donation of a day’s salary by employees of his ministry. The minister, as a trustee of the Fund, had official and fiduciary responsibilities colliding with a clear conflict of interest. The only way the conflict could be resolved was if the matters of the Fund were government business and a senior public functionary was not encouraging government employees of his ministry to donate their salary to a non-government trust.
The fact that the minister saw no conflict of interest implies that matters of the Fund were government business after all, or at least, were government business on the day of this transaction since the Supreme Court judgment came later and the ministry of corporate affairs was still asserting that the Fund is set up by the Central Government. It stopped being government business thereafter.
If the Fund was a private venture conveying the patronage of the government of India, the government would have moved to stop hundreds of crores of rupees donated by well-meaning citizens and foreign arms companies from landing in the Funds’ coffers.
The government’s lack of action permits a reasonable conclusion that the government saw no behaviour at odds with the law and this Fund is a creation and creature of the government.
Clearing Up Concerns
Taking the PMO’s assertion at face value that the Fund is not a “public authority”, three answers would clear up some of the concerns the Fund has created:
* Why have the Prime Minister’s Office, senior civil servants and significant government assets been handed out to a non-government trust?
* If this public charitable trust is a public authority after all, why has the government refused to release information on its operation and establishment?
* What is the basis for permitting non-government entities to use protected national symbols, including symbols that, by statute, the government cannot grant permission for?
The government’s inconsistent and illogical attempts to keep the Fund away from public scrutiny fail even the category of the trust it formed.
Almost 140 years ago, section 19 of the Indian Trusts Act, 1882, settled for Indian jurisprudence the principle that a trustee is accountable to the beneficiary of the trust “at the request of the beneficiary, to furnish him with full and accurate information as to the amount and state of the trust-property”. The Fund itself defines its beneficiary as the pandemic- affected public.
(Divyam Nandrajog is a Delhi-based lawyer.)
Previously on Article 14: