On April 1, 2020, Kandukuri Surya Harsha Teja, a law student, filed an RTI application with the PMO to provide him copies of the trust deed of the PM CARES Fund, all Government Orders, notifications and circulars related to the creation and operation of PM CARES Fund trust.
On May 29, the Prime Minister’s Office (PMO) said the PM Cares Fund was not a public authority and hence denied the information.
It appears to be a deliberate attempt to mislead the applicant in breach of the Right to Information (RTI) Act. It amounts to deemed refusal on May 1 and real rejection without valid grounds on May 29. The PM Cares Fund was created by the Prime Minister and PMO, the name itself suggests such a point.
The PMO has strategically avoided transparency and refused the disclosure of ordinary documents which are not hit by any exceptions under Sections 8 or 9 of the RTI Act, wrongly invoking Section 2(h) (public authority) in 2012.
If the documents are with the PMO, then these were created by the PMO.
There is one case of Aseem Takyar, a resident of Gurgaon, under RTI that dealt with Prime Minister’s National Relief Fund (PMNRF), which is like PM Cares Fund. The PMO didn’t claim that it was not a public authority. Takyar wanted details like names and the particulars of the donors to the Prime Minister’s Relief Fund and the beneficiaries from 2009 to 2011.
The PMO’s Central Public Information Officer (CPIO) had provided some information but denied the details regarding the donors and the beneficiaries on the ground that it was personal information, the disclosure of which was exempt in terms of the provisions of subsection 1(j) of section 8 of the Right to Information (RTI) Act. Status of PMNRF as a public authority cannot be denied.
In the second appeal, Chief Information Commissioner Satyanand Misra held on June 6, 2012, “since the PMNRF is administered in the office of the Prime Minister in accordance with the policy which is already in the public domain, donations and the names of donors could be revealed unless donor did not want its disclosure and the names of institutional donors should be surely published.”
CM Relief Fund
Aseem Takyar filed another RTI request with the Delhi Chief Minister’s Office seeking a complete list of the funds and the contribution received on account of NCT of Delhi for some financial years. The CMO did not say that the Chief Minister Relief Fund was not a public authority.
It had furnished the information about contribution and allotments. But the appellant wanted the list of beneficiaries, and for that, he approached CIC Yashovardhan Azad, who did not see any impediment in providing the list of beneficiaries and amount details. Azad directed on October 31, 2017, that information should be in the public domain.
Both the CIC decisions and the responses of the PMO and CMO confirm that the information could not be denied on the ground that PMNRF or CMRF is not a public authority.
Section 2(h) of the RTI Act says: “public authority” means any authority or 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 State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any—
(i) body owned, controlled or substantially financed;
(ii) Non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;”
Transparency of information has been considered vital to the functioning of a democracy, to eliminate opacity in the functioning and to hold governments and their instrumentalities accountable to the governed. Therefore, in the spirit of the RTI Act, the term “public authority‟ must be subjected to a liberal interpretation.
As all other essentials do not apply, only last parameter “body owned, controlled or substantially financed” will bring the PMNRF within the definition of public authority, held Justice Ravindra Bhat based on the interpretation of ‘control’ being exercised over the fund. (PMNRF vs Aseem Takyar, Delhi HC May 23, 2018)
Justice Bhat said: “that whilst PMNRF does not receive funding from the Central or State Governments, yet, it is administered in the office of the Prime Minister in accordance with the policy which exists in the public domain. “This is on the strength of the prestige lent by the Prime Minister, his office and the confidence that is generated that such amounts would be used for funds in the exercise of discretion for many contingencies that the donor may visualize, (or not visualize, but is confident would reach deserving beneficiaries or causes).”
“It has to be emphasized that the appeal to generosity (in seeking donation) inherent through the nature of the fund is the confidence and trust that millions of donor’s repose in the Prime Minister and the office of the prime minister. All those seconded to the office of the fund are public servants; they have no personal stake or interest,” he said.
“Such a fund cannot but be called as a public fund. The Prime Minister has no personal stake or interest in the receipt or disbursement. The disbursement of amounts is towards deserving and noble causes, especially in unforeseen contingencies and calamities. Donations to the fund come from all kinds of sources including, sometimes, State Undertakings, both Central and State. Many such donors may even publicise about their donations in the media”.
Justice Sunil Gaur, another member on the division bench of the Delhi High Court, differed with Justice Bhat and held that the Trust did not owe its existence to the Government but was a creation of the then Prime Minister of India in an ex-officio capacity.
Both the judges quoted the same law and judgment but gave a different opinion on the extent of control of the government over the fund. The people believe and trust in highest constitutional office holder i.e., Prime Minister and hence donate money to the fund in PM’s name. It is not Jawaharlal Nehru or Narendra Modi fund, it is PM’s NRF.
Under the chairmanship of the PM, three cabinet ministers and other trustees nominated by them govern, manage and spend the fund. It’s deep control, not mere control, that the government had over the fund. It is difficult to imagine that how sometimes the court ignored these substantive points. Justice Gaur’s observation about control is not in tune with the letter and spirit of the RTI Act, which was rightly explained by Justice Bhat.
Unfortunately, because of the division of opinion, the matter was referred to a third judge of Delhi High Court and is pending since 2018.
It is not factually correct, reasonable and justified to say that PMNRF is different from the PM and PMO and it is not legal to ignore the fact that donations pour in because it was the government that controls the fund and that the substantive control of PM, three cabinet ministers and their officers over the distribution of the fund, makes it public authority.
The PMO’s CPIO said: “PM CARES Fund is not a public authority under the ambit of Section 2(h) of the RTI Act, 2005. However, relevant information in respect of PM CARES Fund may be seen on the website pmcares.gov.in”
When RTI request was filed with PMO, how can CPIO take a stand that PM CARES Fund was not public authority? If PMO has no ‘control’ over PM CARES Fund that makes it public authority, how was information on PM CARES made available on the government website and how did the PM or government appeal to people for donations?
To avoid transparency, the Centre is becoming cantankerous litigant by adopting contradictory stands, like giving information as a public authority, and later denying that status before courts, taking an order of CIC to disclose information to high courts and fighting citizens up to Supreme Court for decades. The PM CARES Fund does not care for transparency. If there is nothing to hide, why information on PM CARES is not revealed?
(M Sridhar Acharyulu is a former Central Information Commissioner and Dean of Law in Bennett University)
(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not reflect the views of The Federal)