Amounts donated to the Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) does not go into the Consolidated Fund of India and, therefore, it is “not a fund of the Government of India”, the Delhi High Court has been told.
The submission was made in a reply to a public interest litigation (PIL) petition filed by Samyak Gangwal (Samyak Gangwal vs Union of India & Anr.) seeking clarity on the legal status of the PM CARES Fund, including whether it falls within the category of “State” under Article 12 of the Constitution of India.
The reply affidavit has been filed on behalf of the PM CARES Fund by Pradeep Kumar Srivastava, who is currently serving as an Under Secretary at the Prime Minister’s Office.
It may be noted that the Central government (respondent 1) has not filed its reply. The reply filed by the PM CARES Fund (respondent 2) stated:
“Irrespective of whether the Trust is a ‘State’ or other authority within the meaning of Article 12 of the Constitution of India and or whether it is a ‘public authority’ within the meaning of section 2[h] of Right to Information Act, Section 8 in general and that of provisions contained in sub section [e] and [j], in particular, of the Right to Information Act, it is not permissible to disclose third party information.”
It is asserted in the reply further that the PM CARES Trust functions on an honorary basis and with complete transparency.
The reply mentioned that the funds were being audited by auditor who is a Chartered Accountant from a panel appointed by the CAG or Comptroller and Auditor General of India.
“I state and submit that the Trust functions on the principles of transparency and public good in larger public interest like any other charitable trust and, therefore, cannot have any objection in uploading all its resolutions on its website to ensure transparency”, Srivastava stated on behalf of the Fund.
The reply added that it was sufficient to mention that all donations received by the Trust were received via online payments, cheques and / or Demand Drafts and that the amounts so received were audited. The audit report and the expenditure of Trust fund which was displayed on the website as well, it was submitted.
In a rejoinder the petitioner has submitted that the reply is a “scrappy and shoddy attempt to mislead this Hon’ble Court.”
“In the Reply Affidavit, vague, ambiguous and incorrect averments are made to the effect that the PM Cares Fund is not a fund of the Government of India, without placing on record any supporting documents.
The Petitioner has placed several documents in the captioned Writ Petition to demonstrate the PM CARES Fund is a fund of the Government of India”, the rejoinder stated further.
The petitioner has added that the reply “neither admitted nor denied that PM CARES Fund is a ‘State’ within the meaning of Article 12 of the Constitution.”
The rejoinder also asserted that the PM CARES Trust “is ‘State’ within the meaning of Article 12 and is also a fund of the Government of India.
Moreover, merely the fact that the funds from the Trust do not go to the Consolidated Fund of India is not determinative of whether the ‘Trust’ is a ‘State’ or not under Article 12.”
The petitioner, Samyak Gangwal has contended that the PM CARES Fund should be viewed as a part of “State” under Article 12 of the Constitution of India in view of the following factors:
It was formed by the Prime Minister of India in March 2020 to extend assistance to the citizens of India in the wake of the public health emergency of COVID-19;
The Trustees of the PM CARES Fund are the Prime Minister, Defence Minister, Home Minister and the Finance Minister of India;
Immediately after the formation of the PM CARES Fund, it was represented that the said Fund is set up and operated by the Government of India.
The representations included Letters written by High Government Functionaries, Notifications/Office Memorandums issued by several ministries/departments, wherein it was clearly stated that the PM CARES Fund has been set up by the Government of India;
These representations also included the use of government resources such as the use of ‘.gov.in’ domain name, State Emblem of India and the name ‘Prime Minister’ and its abbreviation on the PM CARES Fund website and in other official and unofficial communications;
The official address of the PM CARES Fund was stated to be the Prime Minister’s Office South Block, New Delhi- 110011;
It was stated that secretarial assistance to the Fund shall be provided by the PMO Officials;
The Government of India “deeply and pervasively” controls the fund, and also provides assistance to the fund by seeking donations on its behalf and, granting it various privileges, exemptions and benefits;
PM CARES Fund has been established by the Government of India through the PMO;
PM CARES Fund performs a public function which is similar to government functions;
PM CARES Fund utilizes the privileges, benefits and exemptions which are reserved for State.
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