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PM CARES not Public Authority says PMO, in response to RTI query

The applicant had asked for trust deed and other related documents, and now is set to go into appeal

Sabrangindia 02 Jun 2020

PM Care

An RTI application seeking the trust deed of the Prime Minister's Citizen Assistance and Relief in Emergency Situations (PM CARES) fund has elicited a response from the Prime Minister’s Office (PMO) stating that the trust fund is not a public authority. The RTI application was filed by Harsha Kandukuri, a student of LLM at Azim Premji University had sought copies of the trust deed and all government orders, circulars and notifications related to its creation and functioning. This means, this would have included all the circulars issued by various government departments to it employees to contribute certain amount from their salary towards the fund. Some of these circulars asked for reasons from employees for not contributing towards the fund, this was criticized by the All India Trade Union Congress (AITUC).

The fund – Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund –was created on March 28 to deal with any emergency posed by the COVID-19. The Wire reported that the fund received Rs. 6,500 crore within a week and so far it has received Rs. 10,000 crore.

The RTI application met with a response from the PMO saying that PM Cares is not a public authority under the Right to Information Act (RTI Act). As per the Act a public authority means any authority, 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 the state legislature and 

d) by notification issued or order made by the appropriate government. It also includes “body owned, controlled or substantially financed; non-governmental organisation substantially financed directly or indirectly by funds provided by the appropriate government”.

Kandukuri told legal news website, LiveLaw, that he was planning to go into appeal and about the PMO’S response said, “By denying PM Cares Fund the status of ‘public authority’, it is only reasonable to infer that it is not controlled by the Government. If that is the case, who is controlling it? The name, the composition of the trust, control, usage of emblem, government domain name everything signifies that it is a public authority. By simply ruling that it is not a public authority and denying the application on RTI Act, the government has constructed walls of secrecy around it. This is not about lack of transparency and denying the application of the RTI Act to the fund, we should also be worried about how the fund is being operated. We do not know the decision making process of the trust and safeguards available, so that the fund is not misused. For a trust which is created and run by four cabinet ministers in their ex-officio capacities, denying the status of ‘public authority’ is a big blow to transparency and not to mention our democratic values.”

PM CARES in courts

There was a similar dispute with the “public” nature of the Prime Minister’s National Relief Fund (PMNRF) which is pending before the Chief Justice of the Delhi High Court. There is no clarity on whether PM Cares is subject to the audit of the Comptroller and Auditor General of India (CAG). While a news report by NDTV quoted sources from CAG office saying that since the fund is based on donations of people and organizations it had no right to audit the fund, the apex court has dismissed two petitions questioning the legality of the fund. However, one such petition is still pending before the Bombay High Court seeking audit of the fund by CAG.

Interpretation of the Act in court?

The Act has six Chapters and two Schedules. Right to Information has been defined under Section 2(j) of the Act to mean as follows:

"(j) "right to information" means the right to information accessible under this Act which is held by or under the control of any public authority…”

Under section 6 of the Act, deals with request for obtaining information, how it is to be made. In Khanapuram Gandaiah v. Administrative Officer and Ors, the apex court held that “an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force.” Further, in Central Board of Secondary Education v. Aditya Bandopadhyay’ (2011) 8 SCC 497, a division bench held that information under the Act can be divided into 3 categories as follows:

“59. The effect of the provisions and scheme of the RTI Act is to divide “information  ” into three categories. They are:

(i) Information which promotes transparency and accountability in the working of every public authority, disclosure of which may also help in containing or discouraging corruption [enumerated in clauses (b) and (c) of Section 4(1) of the RTI Act].

(ii) Other information held by public authority [that is, all information other than those falling under clauses (b) and (c) of Section 4(1) of the RTI Act].

(iii) Information which is not held by or under the control of any public authority and which cannot be accessed by a public authority under any law for the time being in force….

In regard to the information falling under the first category, there is also a special responsibility upon the public authorities to suo motu publish and disseminate such information so that they will be easily and readily accessible to the public without any need to access them by having recourse to Section 6 of the RTI Act. There is no such obligation to publish and disseminate the other information which falls under the second category.”

From the above case laws it may be inferred that since 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, the information of PM CARES is held by a public authority. The PMINDIA website also mentions: “The Central Public Information Officer (CPIO) of the Prime Minister’s Office is obliged to provide only such information which is held by or under control of this Office and related to its function(s)”. If the Prime Minister is the ex-officio Chairman, it means it is holds information related to PM CARES and hence can provide the same under the RTI Act.

Albeit, this is just an inference and matter will get decided by the Appellate authority under the RTI Act.

Related:

Plea in Bombay HC seeks CAG audit of PM CARES fund  

COVID-19 and the Indian Supreme Court

 

PM CARES not Public Authority says PMO, in response to RTI query

The applicant had asked for trust deed and other related documents, and now is set to go into appeal

PM Care

An RTI application seeking the trust deed of the Prime Minister's Citizen Assistance and Relief in Emergency Situations (PM CARES) fund has elicited a response from the Prime Minister’s Office (PMO) stating that the trust fund is not a public authority. The RTI application was filed by Harsha Kandukuri, a student of LLM at Azim Premji University had sought copies of the trust deed and all government orders, circulars and notifications related to its creation and functioning. This means, this would have included all the circulars issued by various government departments to it employees to contribute certain amount from their salary towards the fund. Some of these circulars asked for reasons from employees for not contributing towards the fund, this was criticized by the All India Trade Union Congress (AITUC).

The fund – Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund –was created on March 28 to deal with any emergency posed by the COVID-19. The Wire reported that the fund received Rs. 6,500 crore within a week and so far it has received Rs. 10,000 crore.

The RTI application met with a response from the PMO saying that PM Cares is not a public authority under the Right to Information Act (RTI Act). As per the Act a public authority means any authority, 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 the state legislature and 

d) by notification issued or order made by the appropriate government. It also includes “body owned, controlled or substantially financed; non-governmental organisation substantially financed directly or indirectly by funds provided by the appropriate government”.

Kandukuri told legal news website, LiveLaw, that he was planning to go into appeal and about the PMO’S response said, “By denying PM Cares Fund the status of ‘public authority’, it is only reasonable to infer that it is not controlled by the Government. If that is the case, who is controlling it? The name, the composition of the trust, control, usage of emblem, government domain name everything signifies that it is a public authority. By simply ruling that it is not a public authority and denying the application on RTI Act, the government has constructed walls of secrecy around it. This is not about lack of transparency and denying the application of the RTI Act to the fund, we should also be worried about how the fund is being operated. We do not know the decision making process of the trust and safeguards available, so that the fund is not misused. For a trust which is created and run by four cabinet ministers in their ex-officio capacities, denying the status of ‘public authority’ is a big blow to transparency and not to mention our democratic values.”

PM CARES in courts

There was a similar dispute with the “public” nature of the Prime Minister’s National Relief Fund (PMNRF) which is pending before the Chief Justice of the Delhi High Court. There is no clarity on whether PM Cares is subject to the audit of the Comptroller and Auditor General of India (CAG). While a news report by NDTV quoted sources from CAG office saying that since the fund is based on donations of people and organizations it had no right to audit the fund, the apex court has dismissed two petitions questioning the legality of the fund. However, one such petition is still pending before the Bombay High Court seeking audit of the fund by CAG.

Interpretation of the Act in court?

The Act has six Chapters and two Schedules. Right to Information has been defined under Section 2(j) of the Act to mean as follows:

"(j) "right to information" means the right to information accessible under this Act which is held by or under the control of any public authority…”

Under section 6 of the Act, deals with request for obtaining information, how it is to be made. In Khanapuram Gandaiah v. Administrative Officer and Ors, the apex court held that “an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force.” Further, in Central Board of Secondary Education v. Aditya Bandopadhyay’ (2011) 8 SCC 497, a division bench held that information under the Act can be divided into 3 categories as follows:

“59. The effect of the provisions and scheme of the RTI Act is to divide “information  ” into three categories. They are:

(i) Information which promotes transparency and accountability in the working of every public authority, disclosure of which may also help in containing or discouraging corruption [enumerated in clauses (b) and (c) of Section 4(1) of the RTI Act].

(ii) Other information held by public authority [that is, all information other than those falling under clauses (b) and (c) of Section 4(1) of the RTI Act].

(iii) Information which is not held by or under the control of any public authority and which cannot be accessed by a public authority under any law for the time being in force….

In regard to the information falling under the first category, there is also a special responsibility upon the public authorities to suo motu publish and disseminate such information so that they will be easily and readily accessible to the public without any need to access them by having recourse to Section 6 of the RTI Act. There is no such obligation to publish and disseminate the other information which falls under the second category.”

From the above case laws it may be inferred that since 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, the information of PM CARES is held by a public authority. The PMINDIA website also mentions: “The Central Public Information Officer (CPIO) of the Prime Minister’s Office is obliged to provide only such information which is held by or under control of this Office and related to its function(s)”. If the Prime Minister is the ex-officio Chairman, it means it is holds information related to PM CARES and hence can provide the same under the RTI Act.

Albeit, this is just an inference and matter will get decided by the Appellate authority under the RTI Act.

Related:

Plea in Bombay HC seeks CAG audit of PM CARES fund  

COVID-19 and the Indian Supreme Court

 

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2020

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