This article is written by Amartya Sharan from School of law, UPES. This is an exhaustive article that covers the meaning of public authority and whether the PM CARES fund is a public authority or not.
Information is the currency of democracy – Thomas Jefferson
The Right to information is a right that is given to us by the Constitution of our country. Although it is not expressly mentioned anywhere in the constitution but the Article 19 of the constitution provides this right to us.
The Supreme Court also in the case Mr. Kulwal v/s Jaipur Municipal Corporation said that right to information comes under the fundamental right of speech that is given to us by Article 19.
The basic objective behind enacting Right to information Act is to empower the citizens of the country, after this Act came into force any citizen irrespective of age can ask for information from any public office and it is the responsibility of the public information officer of the office to provide the information to them in a fixed period of time.
It also promotes transparency and accountability between the government and the citizens of the country. Before the enactment of this Act, the citizens have no options for getting any information regarding the work of the government but after the enactment, the citizens can know it and decide according to whether the chosen government is working efficiently or not. And if they think that the government is not working in the way they promised then they can change the government in the next election. It gives the chance to people to actually participate in the decision-making process of the government. After the enactment of the Act, the level of corruption also decreases in many government offices because they know that by using this right any citizen can get information regarding the same.
There were some other articles in the constitution as well which also promote this right, such as in Article 22(1) of the constitution it is given that if any person is arrested or detained by the authority then he shall be informed of the grounds of the arrest and also about his right to be represented by an advocate.
In S.P Gupta v. Union of India, the Supreme Court asserted that the citizen’s right to information is an essential principle of democracy. The court after seeing the rise in demand in the whole world regarding the information sharing by the government said this.
About PM CARES fund
Prime minister’s Citizen Assistance and Relief in Emergency Situations Fund which is also known as PM CARES FUND is formed by the prime minister of India Narendra Modi. He created this fund on 28th March 2020, to deal with the ongoing pandemic of COVID-19.
It is a public charitable trust that is created by the Prime minister’s office to deal with emergencies such as COVID-19.
The government said that the main objective behind setting up PM CARES FUND is to provide support to the concerned government and the people of that area where any kind of emergency is there. This fund can be used to build hospitals or to improve the existing health facilities, it will also help such organizations who are working to develop certain vaccines for a disease.
The money in this fund can be also used to give money to the affected population of that area or to use the money of the fund in any manner which satisfies the needs of the people of that area. They can use the money of that fund in any way so that the money used is not inconsistent with anything prescribed earlier.
The Prime minister of our country is the ex-officio chairman of the PM cares fund and the minister of finance and minister of home affairs of the government of India are the ex-officio trustees of that fund. The Prime minister also has the power to nominate three persons who will be the trustees of the fund. He can choose any three who are known in their fields such as research, health, science, social work, law, public administration, and philanthropy. The persons appointed by the prime minister for this post will work in the pro bono capacity for the PM cares fund.
The head office of this fund is situated at the prime minister’s office, south block, New Delhi. The PM CARES FUND accepts all kinds of voluntary contributions of the citizens in the country as well as from abroad as well. The companies can also donate the money allocated to Corporate Social Activities activities and it will be counted as work done in CSR activity only.
Is PM CARES fund a public authority
The term public authority is defined under Section 2(h) of the right to information act. Under this section, it is said that public authority means any authority or body or institution of self-government established or constituted: by or under the Constitution; by any other law made by Parliament; by any other law made by State Legislature; by the notification issued or order made by the appropriate Government, and includes any body owned, controlled or substantially financed; non-Government Organization substantially financed, directly or indirectly by funds provided by the appropriate Government.
So any organization that comes under these points will be a public authority and have to give answers to any RTI proposed to them.
PM CARES FUND cannot come under the ambit of public authority because some points such as this fund are not created by the constitution and it is also not created or established by law or by parliament and most importantly it is not funded by the government.
In the case of the National Stock Exchange of India Limited vs. Central Information Commission, the court said that if the condition that is owned, controlled, or substantially financed is there in an organization then it would be sufficient to declare it a public authority. All these three points were distinct from each other.
So in my opinion the PM CARES FUND is a public authority because many functions are controlled by the government. Such as the prime minister is the ex officio chairman of the fund with three other cabinet members as well and he has the responsibility to appoint three more trustees of the fund so all these functions that were performed by the prime minister show that he has some sort of control in the fund, so it explains that this fund is a public authority.
There are many government organizations such as Indian railways that have donated a large sum in the PM CARES Fund that shows it is also substantially financed by the government organizations.
The use of the state emblem of India on the official website of PM CARES FUND shows that it is a public authority because the emblem represents the government of India and its use indicates that it is a public authority.
The aforesaid points show that the government has control over the fund. So according to me, the PM CARES fund is a public authority under the RTI Act.
But the PM office clearly stated that the PM CARES fund is not a public authority and it does not come under the ambit of the RTI ACT.
In the Army welfare housing organization vs Adjutant General’s Branch and others case, the court said that if any person is holding any position in his ex-officio capacity that does not mean that the government is exercising its control over the function of that organization. The said organization is neither created by the government or the parliament merely if a person is holding any position in that does not mean the government has any interest in that organization.
Has the PMO violated the RTI by withholding information on PM CARES
The Prime minister office has declined the request of the RTI application on the PM CARES Fund, the PMO said that the PM CARES FUND is not a public authority under the section 2(h) of the RTI Act, so it need not provide the information ask in the RTI application.
The Prime minister office also stated that they cannot provide information on the resources because it would “disproportionately divert the resources of the office”. In Section 7(9) of the Right to information Act, it is given that the information asked in an RTI application should be provided to the applicant unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question. The prime minister office has rejected the application stating the same that if they provide the information then it can be used in the wrong ways. They also said that other information regarding the PM CARES FUND is given on their website. So anyone who wants to know anything can visit the website and get information.
But the central information commission has criticized this move of the Prime minister office and stated that it is a misuse of section 7(9) of the RTI act by the Prime minister office.
In 2010 the Kerala high court also stated that Section 7(9) does not exempt any public authority from disclosing information. It only empowers the organization to provide the information in any other way than the way it is sought for. Section 8 of the RTI Act provides valid reasons which can be used by an organization in case they don’t want to provide information.
SC decision on plea against PM CARES fund
The Supreme Court of India has rejected the plea for transferring the funds of PM CARES to the National disaster relief fund. PM CARES FUND is a charitable trust and has been formed to deal with any kind of emergency. The funds collected in this will be used for treating people affected by such disasters, relocating people, and improving the medical services to serve more people. So, “the Supreme Court said that they do not have the authority to transfer the funds to the national disaster relief fund. Both organizations have a different role and the court cannot do such things.”
The Supreme court said that the funds collected in this way because of the voluntary contributions of different individuals and organizations, the government has to do nothing with the funds collected in this so the Supreme Court cannot indulge in this without any sufficient cause.
The main reason for creating this PM CARES fund is to have a dedicated fund for fighting with any kind of emergency situation such as covid -19. The money in this fund can be used in any way in which the trustees of the fund thinks suitable to fulfill the objective behind creating this fund. The national disaster relief fund and the PM CARES fund is totally different in the NDRF fund government money is used to fight the disasters but in PM CARES no government money is used, the individual’s money that they have donated voluntarily is used.
The reason and logic behind the creation of The Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM CARES) Fund are good. There were different funds present already in the country but the government cannot use those funds in the way they like. These funds have a structural organization and if any government wants any money from it then they have to follow the entire step that will take some time. So in an emergency many times the government finds it very difficult to get those permissions.
This fund is created to deal with any kind of emergency and any situation that is created after the emergency. In this fund, anybody can voluntarily contribute any sum of money and the money will be used for dealing with such kinds of situations.
In my opinion, only some transparency is needed in the PM CARES trust. The doubt that is there in the mind of the general public will be cleared after this. If the government allows the addition of an opposition leader in the committee of the trust then it would also lead to clear the doubts that are there in people’s mind regarding the objective and the formation of the trust.
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