“It is my appeal to my fellow Indians. Kindly contribute to the PM-CARES fund to donate to India’s war against COVID 19” reads Prime minister Modi’s tweet.
Lakhs of people did not contribute to PMCARES fund thinking it’s a private fund, but as their PM called to donate for it, they donated generously because of their confidence in the government under the name of prime minister.
However, any RTI query about the fund’s details of amount received and spent, trust deeds, its creation or operation, have been responded bluntly with “such details about the fund cannot be revealed as PMCARES Fund is not a public authority”.
RIGHT TO KNOW INFRINGED:
This denial of answers severely infringes with the “right to know”, an indisputable fundamental right, of the general public and the COVID patients, who are the expected beneficiaries.
In the first week, news reports suggested that publicly declared donations added up to at least Rs. 6,500 crore. A recent analysis by IndiaSpend estimated that at least Rs 9,677.90 crore has been collected in the PM-CARES fund so far. However, the only announcement given by the fund mentioned a receipt of just 3076.62 crores.
Due to the lockdown, millions of migrant labourers were stranded in cities and an estimated 12.2 crore became jobless. No funds from PM-CARES were allocated to them as expected. There is total lack of transparency about the appropriation of the funds.
The central government is procuring 5,000 ventilators from a Rajkot-based firm, which supplied Ahmedabad Civil Hospital, which declared them to be inadequate. If the details of funds received and spent are transparent to the public, the fund will function in a more responsible manner avoiding abuse of power.
The facility of getting uncapped corporate donations, which are exempted from tax and earmarked as CSR contributions, raises questions of ulterior motives. Backdoor money can go now easily through the front door, but we are made blind to see it.
It is hereby very clear that all ideals of RTI Act, namely, transparency, accountability, removal of corruption, citizen-Government participation, have been unaddressed by the government through consciously keeping the PMCARES fund out of the purview of RTI Act.
PMCARES FUND IS A PUBLIC AUTHORITY:
PM-CARES fund satisfies the definition of “public authority” under Section 2(h) of the RTI Act, which reads as follows:
“Public authority” means any authority or body or institution of self-government established or constituted-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government,
and includes any:
(i) body owned, controlled or substantially financed;
(ii) non-Government organization substantially financed,
directly or indirectly by funds provided by the appropriate Government;
Sec 2(h)(i) brings PM-CARES under the ambit of public authority:
The three conditions in Sec 2(h)(i) are distinct and not cumulative, therefore, any body, which is owned, controlled or substantially financed by the Government, would be a public authority.
PMCARES fund is not owned or financed by the Government as it has been operating as a trust and receives no budgetary support.
The mere “supervision” or “regulation” as such by a statute or otherwise of a body would not make that body a “public authority” within the meaning of Section 2(h)(i) of the RTI Act. It is evident from the management of the PM-CARES fund, the government has a substantial control over the management and affairs of the body:
- The Board of trustees comprises of the Prime Minister as the ex-officio Chairman, and the Ministers of Defence, Home Affairs and Finance as ex-officio trustees. It has been accepted that merely because certain Government Servants hold a position in his/her ex-officio capacity, ipso facto that does not mean that the Government is exercising control through the ex-officio members. However, PM-CARES is not managed by mere government employees. It is headed by the Constitutional Authority, i.e. the Prime Minister of India and administered by the Joint Secretary to the Prime Minister-as Secretary of the fund.
- The trustees alone determine how the funds accumulated will be disbursed.
- It is even recognized as a ‘fund set up by the Central Government for socio-economic development and relief’ by Ministry of Corporate Affairs.
- Circulars were being issued in various government departments, urging lakhs of public and private employees to contribute one day’s salary each month.
- The PM-CARES website is hosted by “gov.in” – the official government domain.
- The fund uses the national emblem of India, which only government entities are allowed to use.
Therefore, the PM-CARES fund should be brought under the purview of the RTI Act and it should be open to the public, quashing questions on transparency and accountability, so that we can contribute more freely and fearlessly.
Sindhanaa Andavan, PM-CARES Fund and Its Lack of Transparency, Ex Gratia Law Journal, (March 7, 2021), https://exgratialawjournal.in/blawg/constitutional-law/pm-cares-fund-and-its-lack-of-transparency-by-sindhanaa-andavan/.