HC prepones hearing on pleas to declare PM CARES Fund a 'State', public authority under RTI Act

A bench of Chief Justice D N Patel and Justice Jyoti Singh allowed the plea of the petitioner to prepone the date of hearing in the matter and changed the date from November 30 to November 18.

New Delhi:The Delhi High Court Friday preponed the hearing on pleas to declare the PM CARES Fund a 'State' under the Constitution and a 'public authority' under the RTI Act to ensure transparency in its functioning.

A bench of Chief Justice D N Patel and Justice Jyoti Singh allowed the plea of the petitioner to prepone the date of hearing in the matter and changed the date from November 30 to November 18.

“Looking into the facts of the case, the writ petition was adjourned on November 30. The same is preponed now and the registry is now directed to list the matter on November 18,” it said.

The court said it was slightly preponing the date on the insistence of senior advocate Shyam Divan, representing petitioner Samyak Gangwal.

The petitioner has filed two petitioners seeking a direction to declare the PM CARES Fund a 'State' under the Constitution to ensure transparency in its functioning and also to declare it a 'public authority' under the RTI Act. The pleas are being heard together.

The petitioner has said that the PM CARES Fund is a 'State' as it was formed by the Prime Minister on March 27, 2020 to extend assistance to the citizens of India in the wake of the public health emergency -- the ongoing COVID-19 Pandemic.

His counsel had told the court that if it is found that the PM CARES Fund is not 'State' under the Constitution, usage of the domain name 'gov', the Prime Minister's photograph, state emblem etc has to be stopped.

However, an affidavit filed by an Under Secretary at the Prime Minister's Office (PMO) who is discharging his functions in the PM Cares Trust on honorary basis, had said the PM CARES Fund is not a government fund as donations to it do not go to the Consolidated Fund of India and no third party information can be parted with irrespective of its status under the Constitution and the RTI Act.

It had said the trust functions with transparency and its funds are audited by an auditor -- a chartered accountant drawn from the panel prepared by the Comptroller and Auditor General of India.

It had vehemently contended that irrespective of the status of Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) under the Constitution and the RTI Act, it is not permissible to disclose third party information.

Irrespective of whether the trust is a ‘State' or other authority within the meaning of Article 12 of the Constitution or whether it is a ‘public authority' within the meaning of provisions of the RTI Act, “it is not permissible to disclose third party information”, it had added.

It had said that all donations received by the trust are received via online payments, cheques or Demand Drafts and the amount received is audited with the audited report and the expenditure of the trust fund displayed on the website.

The officer, who filed the affidavit, had said he was discharging his functions in the PM CARES Trust on an honorary basis which was a charitable trust not created by or under the Constitution or by any law made by the Parliament or by any State legislature.

Opposing the stand that the PM CARES Fund was not a government fund, the petitioner's lawyer had said there was no factor to show that the fund was private in nature.

He had said the Constitution does not permit a government functionary to establish a structure out of its reach.

The petition said the Trustees of the fund are the Prime Minister, Defence Minister, Home Minister and the Finance Minister and immediately after the formation of the fund, the Centre through its high government functionaries represented that the fund was set up and operated by the Government of India.

To ensure transparency and accountability, the plea has sought a direction for periodic auditing of PM CARES website and disclosure of the details of donations received by it.

In his alterative prayers, Gangwal has sought to direct the Centre to publicise that the PM CARES Fund is not a fund of the Government of India and to restrain PM CARES from using 'Prime Minister of India' or 'Prime Minister', including its abbreviations its name, on its website, Trust Deed and other official or unofficial communications and advertisements.

On March 9, the court had said it was not inclined to issue notice on the plea as the Centre was already represented through counsel who may file their written submissions.

The petition challenges a June 2, 2020 order of the Central Public Information Officer (CPIO), PMO, refusing to provide documents sought by him on the ground that PM CARES Fund is not a public authority under the RTI Act.

Solicitor General Tushar Mehta, who represented PMO, had opposed the petition stating that it was not maintainable and he would file a response explaining why it should not be entertained.

PTI