The Delhi High Court has been told that the trust’s fund is not a fund of the Government of India.
The controversies around the Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM-CARES) fund do not seem to be subsiding anytime soon. The fund was created and announced by Indian Premier Narendra Modi on 27 March 2020, following the COVID-19 pandemic in India. However, it has continued to remain in the headlines through this one and half year for all the wrong reasons.
According to recent reports, the PM-CARES fund, a charitable trust under the law, has told Delhi High Court that the trust’s fund is not a fund of the Government of India and its amount does not go in the Consolidated Fund of India.
What did the government official say?
In a revelation that’s supposed to cast more aspersions on the credibility and accountability of the fund, Pradeep Kumar Srivastava, an Under Secretary at the PMO said in a reply: “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.”
Mr Srivastava informed the court that he functions in the trust on an honorary basis and that the trust functions with transparency and its funds are audited by an auditor who is a Chartered Accountant from the panel prepared by the Comptroller and Auditor General of India.
“To ensure transparency, the audited report is put on the official website of the trust along with the details of utilisation of funds received by the trust.”
All donations received by the trust are through online payments, cheques and or demand drafts. The amount so received is audited and the expenditure of the trust fund displayed on the website, the reply said.
What does the petition say?
The PMO official made this stunning submission in response to a petition seeking that PM-CARES Fund be declared as ‘The State’ under Article 12 of the Constitution. This plea in Delhi HC has contends that citizens of the country are aggrieved that a fund set up by the Prime Minister and with trustees like the PM and ministers of Home, Defence and Finance has been declared to be a fund over which there is no government control.
The petition filed by Samyak Gangwal states that the PM-CARES Fund was formed by the Prime Minister in March 2020 for a noble purpose of extending assistance to the citizens in wake of Covid-19 pandemic and huge donations were received by it. However, the plea said, a copy of the trust deed was released by the PM-CARES Fund on its website in December 2020, according to which it is not created by or under the Constitution or by any law made by Parliament.
What does the website say?
According to the PM CARES website, it is a Public Charitable trust. The website also mentions that it has been registered under the Registration Act, 1908 at New Delhi on 27th March 2020. Prime Minister is the ex-officio Chairman of the PM CARES Fund and Minister of Defence, Minister of Home Affairs and Minister of Finance, Government of India are ex-officio Trustees of the Fund. Donations to PM CARES Fund would qualify for 80G benefits for 100% exemption under the Income Tax Act, 1961.
What has the government said so far?
Harsha Kandukuri, a student of the Azim Premji University, Bangalore filed an RTI application last year in April with the PMO seeking copies of the trust deed and all government orders, circulars and notifications related to its creation and functioning.
Surprisingly, in its reply, the PMO said the Fund is not a public authority under section 2 (h) of the Right to Information Act, 2005, and therefore it won’t be able to divulge information sought in the application.
In August last year, another RTI activists Anjali Bharadwaj, accessed file notings that showed the Ministry of Corporate Affairs (MCA) had declared that the fund was set up by the Central government on the day the fund was created. This was in total contrast of what the PMO had said in April.
The trust deed available on the website of the fund, however, reflects what the PMO official said in the reply to the Delhi HC.
Point 5.3 of the Trust Deed says: “The trust is neither intended to be or is in fact owned, controlled or substantially financed by any government or any instrumentality of the government. There is no control of either the central government or any state governments, either direct or indirect, in the functioning of the trust in any manner whatsoever.”
“The composition of the board of trustees consisting of holders of public office ex-officio is merely for administrative convenience and for smooth succession to the trusteeship and is neither intended to be nor in fact result into any governmental control in the functioning of the trust in any manner whatsoever,” it further adds.
It was a ‘government fund’ when started
Earlier last year, on the very next day of the PM-CARES registration, the Ministry of Corporate Affairs issued an office memorandum qualifying PM-CARES as corporate social responsibility (CSR) initiative to receive corporate donations. However, the Companies Act back then, defined eligibility for corporate donations as: “Contribution to the Prime Minister’s National Relief Fund or any other fund set up by the Central Government or the State Governments for socio-economic development and relief and funds for the welfare of the Scheduled Castes, the Scheduled Tribes, other backward classes, minorities and women.”
This goes on to indicate that the Ministry of corporate affairs considered the PM-CARES as a fund set up by the government, as it qualified the PM-CARES as CSR initiative to receive corporate donations.
However, after the government started facing flurry of questions over the fund’s status, it ammended the Companies Act in May 2020. The retrospective amendment meant that the CSR activity would no longer be dependent on whether the fund has been set up by the Central Government or not.
Several ministries, Armed Forces, PSUs and even government run hospitals at the frontline of fighting covid-19 announced that they were pledging one day’s salary to the fund. Not only that, several individuals, private corporates have also made donations to the PM-CARES. These donations were made considering that it is a fund set up by the government of India to fight the pandemic. Though, after the government’s responses, it turns out that the fund was a private entity but had the PM and other union ministers as trustees.
Use of emblem
The State Emblem of India i.e. the Ashoka Pillar is the representation of the Republic of India. The Government of India uses it as a stamp on its official documents for official usage and the State Emblem of India Act, 2005 states that only an authorized body has the authority to use it and no one else can imitate it.
The usage of the emblem by any private body is prohibited as per Section 3 of the State Emblem of India (Prohibition of Improper Use) Act, 2005 because it could give a wrong impression to the general public of being associated with the Central Government or the State Government.
Despite that, the PM-CARES, which claims to be a private entity, used the government emblem on its website and promotional posters and continues do so even now.
Government domain
Usually the use of GOV.IN Domain is restricted to the constituents of Indian Government at various levels, right from Central, State/ Union Territory, District and Sub-District to block, village etc. Using this service, government organisations can get domain names under GOV.IN as per the guidelines.
However, it is unclear why the PM-CARES fund, which is a private entity as per the government, uses or was alloted the GOV.IN domain for its website.
Will the government come clean on the fund?
The Modi-led central government has a responsibility to come clean on the issue of PM-CARES. The long-standing silence on the fund is not only causing a dent to the credibility of Mr Modi’s government, but also shows that the government is absolutely unwilling to be accountable for the money donated by the the honest taxpayers, PSUs and corporate companies.
Moreover, the deed of the trust says: “The composition of the board of trustees consisting of holders of public office ex-officio is merely for administrative convenience and for smooth succession to the trusteeship and is neither intended to be nor in fact result into any governmental control in the functioning of the trust in any manner whatsoever.”
Since PM, FM and Defense Minister are ex officio holding position on a private trust for smooth succession to trusteeship, who all are going to be the trustees? Also, who becomes accountable for the massive amount of money donated to the fund?
The Modi government either does not find these questions important enough to answer, or is unwilling to answer for some or other reason. In case of the latter, the other institutions of our democracy will need to stand up and hold the government accountable.
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