Is PM CARES a public authority or not?

PM care fund

The Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund, more popularly known as the PM CARES fund has been in the news for all the wrong reasons recently. People are increasingly questioning the usage of the fund and how much money has been collected thus far.

When the fund was first introduced in March, many had questioned its legitimacy given how the Prime Minister’s National Relief Fund (PMNRF) was already in existence. Further, a Supreme Court petition questioned the procedure by which the fund was established. A petition by TMC MP Mahua Moitra questioned why Chief Minister relief funds were excluded from receiving contributions under Corporate Social Responsibility (CSR) while PM CARES was allowed the same. This petition was withdrawn by the petitioner as the court said that this can be debated in the Parliament.

Now there are two more petitions relating to the PM CARES fund. One at the Nagpur Bench of Bombay High Court and the other at the Delhi High Court. The one at the Nagpur court seeks transparency in terms of amount collected and how the same have been utilised. The petition at the Delhi High Court seeks to bring PM CARES under the ambit of the Right to Information Act (RTI Act) so that all the information such as amount collected, utilised can be readily available for the public at large. All this because the Prime Minister’s Office declared that PM CARES is not a public authority under RTI Act, while responding to an RTI request seeking trust deed of the fund.

The secrecy behind the fund is feeding into the speculations and suspicions about the fund and the large sum that it has collected. Reportedly, the fund managed to gather 6,500 crores within the first week itself.

Is PM CARES a public authority?

One would imagine that a fund that begins with the word “Prime Minister” must be controlled or at least be supervised by the Prime Minister or his office. One would further imagine that the fund that is being endorsed again and again by the Prime Minister as also by government agencies, would be a public fund. But the government response is just the opposite!

The RTI Act defines public authority as 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.

A plain reading of the above mentioned points would make it appear as though PM CARES is a public authority. Since the PMO has pointed everyone to its website to gather information on the fund, let us try to deduce from the website itself whether PM CARES can be deemed to be public in nature by just using logic. Here are some factors that may point towards the vehemently denied public nature of the PM CARES fund:

1. The PM CARES fund website is a part of the PMO website thus giving an impression that it is controlled by the PMO in some way or the other

2. The purpose of the fund is stated as a “national fund with the primary objective of dealing with any kind of emergency or distress situation, like posed by the COVID-19 pandemic, and to provide relief to the affected”

3. The Prime Minister is Chairperson (ex-officio) of the Fund and Minister of Defence, Minister of Home Affairs and Minister of Finance, Government of India are ex-officio Trustees of the Fund. The term “ex-officio” means by virtue of their position. This means that any person holding the position of the Prime Minister by default become the Chairperson of the PM CARES Fund.

4. The PMO accepts payments towards the fund. This is clear as it is mentioned in the donations FAQ as follows: cheque or demand draft drawn in favour of ‘PM CARES Fund’ can be sent to Under Secretary (Funds), PMO.

5. PM CARES is accompanied by the national emblem of India

Usage of the national emblem

The usage of the national emblem of India is governed by the State Emblem of India (Prohibition Of Improper Use) Act, 2005. The objective of the Act is to prohibit the improper use of State Emblem of India for professional and commercial purpose. Section 3 of the Act states, “No person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government, or as the case may be, the State Government, without the previous permission of the Central Government.”

Further, the Act also prohibits the use of the emblem for wrongful gain, “No person shall use the emblem for the purpose of any trade, business, calling or profession or in the title of any patent, or in any trade mark or design, except in such cases and under such conditions as may be prescribed”.

The Central government has the power to regulate the usage of the Act, hence one may assume that if the Central government is making use of the emblem, it is for strictly government usage and to denote that an authority / organization/ institution belongs to or is controlled substantially by the government.

Hence, the use of the national emblem is a clear giveaway of the public nature of PM CARES fund.

Donations received by PMO

As mentioned above, the PMO is receiving the money that goes to the PM CARES fund. This is a very compelling argument for if even the government is able to prove that the fund is not a public authority. The Supreme Court in Khanapuram Gandaiah v. Administrative Officer and Ors, 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.” Since the PMO is receiving the money for the fund, it means the PMO, a public authority, has access to the information of PM CARES, such as its trust deed, information on the amount of money collected. Further since the Prime Minister, another public authority is the Chairman of the fund, it means he is aware of how the fund is being utilised and how much of it has been utilised.

Hence either ways the government seems to be bound to reveal all such information that has been sought by people either through petitions in court or through RTI applications. Yet, the debate will only get settled when the courts deduce and interpret the same.