The definition of ‘public authorities’ under the Right to Information Act, 2005 (“RTI Act”) has
been an extremely contentious issue since the RTI came into force
“By denying PM CARES fund the status of ‘public authority’, it is only reasonable to infer that it is not controlled by the Government. If that is the case, who is controlling it?” Harsha Kandukuri observes.
Harsha, a student of LLM in Azim Premji University at Bengaluru on April 1, tried seeking information regarding the constitution of the Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund).
Prime Minister’s Office replied stating PM CARES Fund as not being a ‘Public Authority’ Under RTI Act hence the information sought cannot be provided.
Earlier also, in April, While refusing to provide information on an application containing multiple queries, the PMO has resorted to a 2009 order of the CIC in which the Commission had given its verdict regarding an RTI application which sought information on multiple topics. In 2007, Rajendra Singh, a resident of Delhi, had filed an RTI at the CBI headquarters seeking information on a total of 69 points.
This time, PMO has now declared the PM Cares Fund as not being a Public Authority.
CAG on PM Cared Fund
Since the fund is based on donations of individuals and organisations, CAG will not audit the charitable organisation. Unless the trustees ask the CAG to audit, it will not do the same.
Though PM CARES Fund as it corroborates will be audited by one or more qualified independent auditor(s) who will be appointed by the Trustees.
Nature and Scope of PM CARES Fund
PM CARES trust, formed by the cabinet on March 28, has Prime Minister Narendra Modi as its chairperson and senior cabinet members as trustees.
Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund’ (PM CARES Fund) is set up with the primary objective of dealing with any kind of emergency or distress situation such as that posed by COVID 19 pandemic. Since inception within a span of 2 months PM CARES has attracted a large amount of donations.
The fund receives voluntary contributions from individuals and organisations and does not get any budgetary support. Donations have been made tax-exempt, and can be counted against a company’s corporate social responsibility (CSR) obligations. It is also exempt from the Foreign Contribution (Regulation) Act, 2010, and accepts foreign contributions
On 26th May, 2020, the Central Government made the following amendment to Schedule VII of the Companies Act 2013, namely:—
In Schedule VII, item (viii), after the words “Prime Minister’s National Relief Fund”, the words “or Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund)” shall be inserted.
This implies, the donations will then be considered as contribution under Corporate social responsibility mandates for the companies.
However, on the other hand Prime Minister’s National Relief Fund (PMNRF) which was set up in January 1948 is primarily utilized to render immediate relief to families of those affected by natural calamities like floods, cyclones and earthquakes etc. and to victims of the major accidents and riots.
The disbursement out of both the fund is made at the discretion of the Prime Minister, and in accordance with the Prime Minister’s directions.
What Information you can get about PM CARES Fund
The PM CARES web page is opaque regarding the amount of money collected, names of donors, the expenditure of the fund so far, or names of beneficiaries. The PMNRF provides annual donation and expenditure information without any detailed break-up. The PM CARES Fund’s trust deed is not available for public scrutiny.
The individual donors may only get the receipt of their transaction which is in no way a disclosure of how the funds so received are going to be spent.
What is Section -2(h) of RTI Act of 2005 ?
Section- 2 (h): “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
It also includes any:
(i) Body owned, controlled or substantially financed;
(ii) Non-Government Organisation substantially financed
The Act thus defines public authorities in two parts.
The first part of the definition (clauses 2(h)(a) to (d))clearly delineate bodies created by the Constitution of India (Union and state executives, Election Commission, etc.), by laws made by Parliament and state legislatures (Central and state universities, regulators such as RBI, SEBI, TRAI etc.), and by government orders or notifications (Planning Commission) as public authorities.
The second part broadens the scope of the definition of a public authority to include any body
owned, controlled or substantially financed, and any non-governmental body substantially
financed by the appropriate government.
This second part of the definition has been the subject of much controversy largely because it leaves the question of what constitutes (a) ownership, (b) control or/and (c) substantial financing open to interpretation.
Unsurprisingly therefore, most of the case law related to the question of public authorities is linked to this aspect of the definition.
Court’s outlook over the issue
A bench headed by Chief Justice S.A. Bobde in April this year refused to entertain a plea seeking quashing of the decision to set up the PM CARES Fund described the PIL filed by lawyer M.L. Sharma as “misconceived” and dismissed it in a hearing conducted through video conferencing.
In another case in the month, Justice Ramana, heading the 3-judge bench pulled up the petitioner for filing frivolous litigation. The judge threatened the petitioner with a fine in case the petition was not withdrawn. “This petition has a political colour” Justice Ramana stated.
Decisions of courts on issues such as government control, substantial financing by the government, and the performance of public functions are varied, and at times contradictory.
High Courts have considered entities to be controlled by the government on the basis of (a) the definition of “State” in Article 12 of the Constitution (most courts have however held that the Article 12 test is not relevant for the RTI Act15), and, (b) supervision and regulation by the government agencies under laws such as Kerala State Co-operatives Act. Some courts have also taken the opposite point of view arguing that regulation and supervision cannot be equated with control.