PM CARES: Whose Fund is it anyway?

PMO Image Courtesy:indiatoday.in

The Prime Minister’s Office (PMO) has finally admitted that the Prime Minister’s Citizen Assistance and Relief in Emergency Situation (PM CARES) Fund, does not belong to the Government of India (GoI) and is infact a “third party”. This shocking revelation has set the cat among the pigeons, what with the fund being launched with a high intensity public relations campaign and previous declarations of involvement of not just the Prime Minister, but several top government officials.

Were these previous official statements, just an effort to add a touch of legitimacy to the fund whose ownership remains nebulous? Has the government been gaslighting us so far?

In a written submission made before the Delhi High Court in connection with a petition seeking that PM CARES Fund be declared as ‘The State’ under Article 12 of the Constitution, Pradeep Kumar Srivastava, an Under Secretary at the PMO, has 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.” Also, the fund’s amount does not go into the Consolidated Fund of India. The PMO official further submitted that his role in the fund is on an honourary basis and that its funds are audited by a Chartered Accountant from the panel prepared by the Comptroller and Auditor General (CAG).

PM CARES Fund: The official story

As per the PM CARES Fund’s own website, “PM CARES Fund has been registered as a Public Charitable Trust. The trust deed of PM CARES Fund has been registered under the Registration Act, 1908 at New Delhi on 27th March, 2020.” It was set up with the primary objective to deal with any kind of emergency situation like the one currently posed by the Covid-19 outbreak and provide relief to those affected. According to the Fund’s official website, “The primary objectives of the PM CARES Fund Trust are:-

To undertake and support relief or assistance of any kind relating to a public health emergency or any other kind of emergency, calamity or distress, either man-made or natural, including the creation or upgradation of healthcare or pharmaceutical facilities, other necessary infrastructure, funding relevant research or any other type of support.
To render financial assistance, provide grants of payments of money or take such other steps as may be deemed necessary by the Board of Trustees to assist the affected population.
To undertake any other activity, which is not inconsistent with the above Objects.”

As far as trustees are concerned, “The Prime Minister is Chairperson (ex-officio) 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.” Additionally, “The Prime Minister, as the Chairperson of the Board of Trustees of PM CARES Fund, has the power to nominate three trustees to the Board who shall be eminent persons in the field of research, health, science, social work, law, public administration and philanthropy. All the Trustees of the PM CARES Fund act in a pro bono capacity.” Moreover, “The fund is administered on an honorary basis by a Joint Secretary (Administration) in the PMO as Secretary to the fund, who is assisted on honorary basis by an Officer of the rank of Director/Deputy Secretary (Administration) in the PMO. The Prime Minister’s Office provides such administrative and secretarial support to the Trustees for the management and administration of the Trust, as may be required by the Trustees.” The website also says, “The Head Office of the Fund is Prime Minister’s Office, South Block, New Delhi.”

Interestingly, on the subject of audits, the website says, “PM CARES Fund is audited by an independent auditor. Trustees of the Fund during the 2nd meeting held on 23.04.2020 decided to appoint M/s SARC & Associates, Chartered Accountants, New Delhi as the auditors of PM CARES Fund for 3 years.” This is not in line with the submission made before the Delhi HC where it was said that the auditor was appointed by a panel prepared by the CAG.

Why you should care about PM CARES

All this creates an interesting grey area for the Fund to operate in. It boasts of honourary / pro bono involvement of top public officials, thus dodging the bullet on their remunerations for their duties to the Fund being paid from public money. The presence of elected government officials as trustees, also adds to the legitimacy quotient. However, it does not say anything about public ownership of the fund.

In light of the latest disclosure, are these government officials, trustees in a private capacity? How are individuals, acting in a private capacity, allowed to be trustees of a public trust?

Why is the Head Office of a Fund that is not owned by the Government of India, located in Prime Minister’s Office?

And, if PM CARES is a Public Charitable Trust and registered as such, in light of the recent revelations, how is it then “not permissible to disclose third party information”?

If all donations have been made via electronic transfers and credit cards, in a purported bid to maintain transparency, why is this “transparency” being hidden behind a veil by preventing scrutiny by way of bringing the Fund under the Right to Information (RTI) Act?

Also, why were public servants and defence personnel such as members of the Indian Air Force (IAF) made to contribute from their salaries to the fund if it is not owned by the Government of India?

How much money is involved?

As per the official website, where the data appears to be outdated, “During 2019-20, an amount of Rs. 3076.62 Crore was collected under PM CARES Fund.” This includes, Rs. 39.68 lakh that was collected in foreign currency. There is no information about donations in 2020-21.

As far as allocations are concerned, the website says, “So far, an amount of Rs. 3100 Crore has been allocated from PM CARES Fund for the following activities:-

Rs. 2000 Crore : For supply of 50,000 ‘Made-in India’ ventilators to Government Hospitals run by Centre/States/UTs
Rs. 1000 Crore : For care of migrant labourers (funds allotted to State/UT Govts.)
Rs. 100 Crore : For vaccine development”

This is interesting because the Made in India ventilators had drawn flak from the Bombay High Court when it was discovered that at least 113 out of 150 ventilators supplied to the Government Medical College and Hospital, Aurangabad, through the PM CARES Fund, were found to be faulty. Six sets of flaws were detected in these ventilators. A company by the name of Jyoti CNC has manufactured the said 150 ventilators with the model name ‘Dhaman III’.

Some of the faults found in these ventilators include ‘no in-let O2 pressure’ display and ‘patient becoming hypoxic’ when on ventilator. The court was also informed that the private hospitals which were given 41 ventilators indicated that all of them were non-functional and declined to use them as it could be life threatening for patients. The Dean of government hospital, Ambajogai, also informed the court that none of the ventilators given to them were worthy of being put to use.

During a hearing on May 25, 2021, a Bench comprising Justices Ravindra Ghuge and BU Debadwar of the Bombay High Court (Aurangabad Bench), observed, “We find a serious issue before us as regards the defective functioning of the ventilators. Except the 37 ventilators which are yet to be un-boxed, 113 ventilators put to use are found to be defective…We find the above situation as regards the dysfunctional ventilators supplied through the PM Cares Fund, to be quite serious. We, therefore, call upon the learned ASGI to state, as to what action would the Union of India initiate in these circumstances.”

A few days later, Central Government reportedly submitted that the 150 ventilators in question were supplied through “Make-in-India and not through the PMCARES Fund.” This is interesting because according to PM CARES Fund’s own website the “Made in India” ventilators were allocated Rs 2000 crores under the PM CARES Fund. Which ventilators were then manufactured using these funds, and how did non-PM CARES Fund ventilators get allocated to government run hospitals? What funds were used to supply these defective ventilators under the ‘Make in India’ initiative? In light of poor quality of these ventilators, doesn’t the ‘Make in India’ initiative itself not come under the scanner for manufacturing and supplying defective products, especially amidst a crisis involving life and death situations? The court itself remarked, “We would have appreciated, had that affiant (author of the affidavit) avoided entering into a blame game and would have shown sensitivity towards the patients, it being the paramount object of a welfare state to take care of the health of its citizens.”

PM CARES: Litigations and Revelations

SabrangIndia has been tracing the various claims made by officials, authorities and the Fund website itself, as well as the various litigations surrounding it.

An RTI application seeking the trust deed of the Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM CARES) fund 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.

The Fund has been the subject of several court cases. A 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. Another petition at Delhi High Court has challenged the rejection of information on PM CARES fund by the Central Public Information Officer (CPIO) in response to an RTI application.

In May 2020, a petition was filed before the Nagpur bench of Bombay High Court seeking an audit by the Comptroller and Auditor General of India (CAG) into the PMCARES Fund. In June, a public Interest litigation (PIL) was filed in the Supreme Court seeking directions that the Centre transfers all contributions of the PM CARES Fund to the National Disaster Response Fund (NDRF) and that it formulates a National Plan as per the Disaster Management Act. This petition was dismissed by the SC in August.

On December 17, 2020, RTI activist Saket Gokhale wrote to Home Secretary Ajay Bhalla seeking prosecution sanction to initiate proceedings against Pradeep Kumar Srivastava who is the Under Secretary (Funds) in the Prime Minister’s Office (PMO) and one of the officials responsible for handling the PM CARES Fund.

Gokhale wanted to initiate action against Srivastava and others handling the fund under provisions of the State Emblem of India (Prohibition of Improper Use) Act, 2005. Gokhale’s letter quotes from the trust deed of PM CARES fund that says, “This trust is not created under the Constitution of India or by any law made by Parliament or by any State Legislature.” It adds, “There is no control of either the Central Government or any State Government/s, either direct or indirect in functioning of the Trust in any matter whatsoever.” This passage is what Gokhale used as the basis for challenging the usage of the national emblem that as per law may only be used by official government entities for official government purposes.

In May 2021, Gokhale also filed an Intervention Application (IA) before the Supreme Court asking for the PM CARES Fund to be made a respondent in the suo motu case being heard by the court on relief efforts related to Covid-19.