The Government of India again refused to make PM CARES Fund accountable It came up with a strange argument that though the CARES is public charitable trust, it is not a government organization, and hence not liable to answer under Right to Information Act. This attitude is a big blow to the transparency law which is going to enter 17th year on 12th October 2021, the so called RTI Day.
An under-secretary of PMO in Government of India filed affidavit on behalf of PM CARES before Delhi High Court on 23rd September claimed that it is not created by or under the Indian Constitution or any other statute, and the amount received by it does not go in the Consolidated Fund of India.
A petitioner Samayak Gangwal, filed a writ petition challenging the PMO’s order rejecting his RTI application stating that PM CARES was not a “public authority” within the meaning of Section 2(h) of the RTI Act.
Section 2(h) defines public authority: A Public authority means any authority/ body self-government constituted:
(i) by or under the Constitution; (ii) by any other law made by the Parliament; (iii) by any other law made by State Legislature; (iv) by notification issued or order made by the appropriate Government, and includes any- (v) body owned, controlled or substantially financed; (vi) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government.
The Prime Minister’s Office should not have deliberately ignored the will that the parliament had expressed in the RTI Act, and the spirit of the Rules and Office Memoranda (OM) issued by the Department of Personnel and Training (DoPT) in responding to RTI requests. The DoPT is the nodal agency to implement people’s access to government’s records in the entire nation. The PMO is one of the Ministries in Central Cabinet, under which the DoPT functions. One cannot imagine that the PMO’s Chief Public Information Officer has no knowledge of the Rules and OMs issued by its own wing – DoPT.
Thousands of crores
Whether PM-CARES did not care for RTI? We get this doubt because PMO refused to give information about the thousands of crores of rupees of public money given into the accounts of government-controlled PM CARES fund.
Why the RTI requests are being rejected by the PM CARES? If sincerely Government adheres to norms prescribed by the RTI Act, there is absolutely no scope for rejecting information request. The PMO is established to be a public authority and the information about PM CARES is either held by it or under its control. Even if some information is withheld, the PMO cannot deny the substantive part of what was sought about PM CARES. Even the Trust of the PM CARES is in the control of PMO, for which, it must be shared, subject of course to exceptions under Section 8. Most of the information about PM CARES should have been voluntarily published.
Section 4(1)(b) of RTI Act mandates suomotu disclosure of information on various points including: (iii) the procedure followed in the decision-making process, including channels of supervision and accountability…(viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public…
(xiii) particulars of recipients of concessions, permits or authorisations granted by it.This mandates that the PMO to give all information such as what the process was and how the decision to call for the lockdown was made, without waiting for someone to file an RTI request. Regarding PM CARES, it should disclose the donors, beneficiaries, decisions made and how they were made.
Section 4(2) says:It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suomotu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.
Section 4(4) mandates that CPIO shall make such information:“…available free or at such cost of the medium or the print cost price as may be prescribed”.Section 4(1)(c) says public authority shall:“…publish all relevant facts while formulating important policies or announcing the decisions which affect public.”
Section 4(1)(d) says public authority:“…shall provide reasons for its administrative or quasi-judicial decisions to affected persons.”
Disclose details, reasons
If the PMO thinks it is an administrative decision, then also it must disclose complete details and reasons.Ultimately, how can the PMO breach Section 6(3), which says where requested information is held by or is closely connected with functions of another public authority, CPIO shall transfer to that public authority?
What is the nature of PM CARES?
Is it a trust or public charitable trust? Whether character of Trust can be drawn from the statements of the Government of India or PMO who flatly deny any accountability? The PIO of PMO through his replies cannot determine the true nature of this CARES Fund. The Government has released the trust deed of the fund, in December 2020, which will serve as a guide to determine its true nature, which says that it is a public charitable trust. What is to be noted is that it does not exempt it from the purview of the RTI Act. The Bombay high court has already clarified the law on this stating that public charitable trust will be considered a public authority under the RTI Act if it satisfies the condition of sub-clauses (i) of Section 2(h)(d) i.e. if it is owned, controlled or substantially financed by the government.
Clause 8 of the trust deed defined the powers of the Board of Trustees (“Board”), and the board has complete control over management and administration of the trust. The designated trustees are cabinet ministers. They have been called trustees because of their ex-officio capacity as per clause 6 of the deed: (1) Prime Minister, who is also the chairman of the trust, (2) Minister of Defense, (3) Minister of Home Affairs and (4) Minister of Finance. Further, the chairperson has the power to nominate three other trustees from among the eminent persons in various fields like law, health, science, etc. Can we say that because PM and three Cabinet Ministers are having ‘control’ over the body? The Supreme Court answered this question. In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, the apex Court clarified that if the government has a dominant role to play in terms of power to appoint the secretary, nominate and terminate members of the governing board, then it is said to have control over the body. Can anybody say that in the PM CARES Fund, the government officers holding positions of trustees are just ceremonial heads, and the entire management and administration of the fund are within their hands? No. That control decides that it is public authority. The Chairman ie., Prime Minister has complete power to modify the Constitution of the Trust Board. The office PMO with its secretariat helps the management. Joint Secretary of PMO is the secretary of the fund.
Substantial government control
The Government is not merely wielding supervisory or regulatory control but has ‘substantial’ control over the fund. This control is enough to make PM CARES Fund a public authority, as per the decision of the Supreme Court in Thalappalam Service Coop. Bank Ltd. v. State of Kerala as an essential requirement under section 2(h)(d)(i) of RTI Act. It has to be a public authority under the RTI Act.
If the PM or his three Ministers or his office takes a decision regarding the operation of the PM CARES Fund, can anybody describe them as the decisions in their personal capacity. They are absolutely official. The fund is not being used for personal purposes but for achieving the objectives of trust. The clause 4.2 of the trust deed explains primary objectives:
- “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.”
Apart from this, the officers and staff will sit in the seat of PMO. They communicate on Government website. The PM and Ministers appeal to donate in official capacity in the Government platforms and official domains like gov.in. They use Sarnath Lion Capital of Ashoka symbol which is the emblem of India. They instruct, made it mandatory or request or persuade the employees to donate one day salary or ask, instruct if not compelling the Public Sector Undertakings to divert the Corporate Social Responsibilities fund to PM CARES.
Whom does this secrecy in PMO or PM CARES Fund created by the government benefit? Will It not injure the people it seeks to serve? Does it not damage its own integrity and operation? Will it not breed distrust, dampen the fervor of its citizens and mock their loyalty?
Jeromy Bentham says: “A secret policy saves itself from some inconveniences I will not deny; but I believe, that in the long run it creates more than it avoids; and that of two governments, one of which should be conducted secretly and the other openly, the latter would possess a strength, a hardihood, and a reputation which would render it superior to all the dissimulations of the other.”Who will care Jeromy Bentham?
M. Sridhar Acharyulu is a former Central Information Commissioner and dean, School of Law, Mahindra University.