PM-Cares Vs PMNRF: Where Is My Money Going?

PMNRF: The PMNRF was established pursuant to an appeal made by way of a press note dated 24/01/1948 by the then Prime Minister Jawahar Lal Nehru. He felt the need to have such a fund to make ends meet in the hard times owing to rioting and exodus from Pakistan on occasion of partition of India.

When the Fund was constituent, the following people were included in the managing committee of the PMNRF.

i) The Prime Minister.
ii) The President of the India National Congress party.
iii) The Deputy Prime Minister.
iv) The Finance Minister.
v) A representative of Tata Trustees.
vi) A representative of Industry & Commerce to be chosen by FICCI.

Also Read: PM CARES Fund Not A 'Public Authority' Under RTI Act, Says Prime Minister's Office

That in 1973, an application was filed before the Income Tax authority under Section 12A of the Income Tax Act, 1961 to register the fund as a "Trust" for the purposes of Income Tax exemption. The said application of the Fund was allowed by the Commissioner of Income Tax on 18.09.1973 and the fund was registered as a "Trust" bearing No. DLI(C)(T-25)/73-74. Subsequently, the fund was also allocated a separate Permanent Account Number (PAN). Though, no specific Trust Deed was executed for the said purpose, the fund was, however, deemed to be a "Trust".

Finally, in 1985, the Managing Committee of PMNRF entrusted the entire management of the said fund to the Prime Minister who was given the discretion to appoint a secretary of the fund to manage it.

Today the fund is recognized as a Trust under the Income Tax Act and the same is managed by Prime Minister or multiple delegates for national causes. PMNRF operates from the Prime Minister's Office, South Block, New Delhi-110011 and does not pays any license fee. PMNRF is exempt under Income Tax Act, 1961 under Section 10 and 139 for return purposes. Contributions towards PMNRF are notified for 100% deduction from taxable income under section 80(G) of the Income Tax Act, 1961. Prime Minister is the Chairman of PMNRF and is assisted by Officers/ Staff on honorary basis. Permanent Account Number of PMNRF is AACTP4637Q. Donations to PMNRF will also qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the Companies Act, 2013 . PMNRF accepts donations and contributions from individuals and organizations based in foreign countries also.

PM CARES : "Keeping in mind the need for having a dedicated national fund with the primary objective of dealing with any kind of emergency or distress situation , like posed by the COVID-19 Pandemic, and to provide relief to the affected, a public charitable trust under the name of 'Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund' (PM CARES Fund)' has been set up." (wondering why was this added:( ", like") (comma means breaking of sentence and 'like' suggests - not limited to).

But assuming the fund is limited to COVID – 19 Pandemic only as claimed, it enjoys all the above benefits of PMNRF.

Prime Minister is the ex-officio Chairman of the PM CARES Fund just like in PMNRF.

The only addition seems that Minister of Defence, Minister of Home Affairs and Minister of Finance, Government of India are ex-officio Trustees of the PM Cares FUND. But these additions / amendments could have been easily made in the PMNRF by way of a supplementary Trust Deed.

Similarities between the two trusts:

1. The fund consists entirely of voluntary contributions from individuals/organizations and does not get any budgetary support.
2. The Trust does not owe its existence to the Government but is a creation of the then Prime Minister of India in an ex-officio capacity.
3. In Army Welfare Housing Organization v. Adjutant General's Branch & Ors., (2015) 216 DLT 184 , the hon'ble Court has clarified that merely because certain government functionaries hold a position in his/her ex-officio capacity, ipso facto does not mean that Government is exercising control through the ex officio members.
4. Trust is neither constituted by the Parliament nor by the Government and it is not managed by Government functionaries in their official capacity.
5. Rule 47 of the Rules of Procedure and Conduct of Business in Rajya Sabha reads as under: - "47. Conditions of admissibility of questions (1) Subject to the provisions of sub-rule (2) of this rule, a question may be asked for the purpose of obtaining information on a matter of public importance within the special cognizance of the Minister to whom it is addressed. (2) The right to ask a question is governed by the following conditions: "(xx) it shall not relate to a matter with which a Minister is not officially connected;" (So no questions can be asked in the Rajya Sabha about the funds of the trust.)
6. Rule 41 of the Rules of Procedure and Conduct of Business in Lok Sabha is as under: - "41. Admissibility of questions: (1) Subject to the provisions of sub-rule (2), a question may be asked for the purpose of obtaining information on a matter of public importance within the special cognizance of the Minister to whom it is addressed. (2) The right to ask a question is governed by the following conditions, namely:— "(viii) it shall not relate to a matter which is not primarily the concern of the Government of India; … (xix) it shall not relate to a matter with which a Minister is not officially concerned;" (So no questions can be asked in the Lok Sabha about the funds of the trust.)
7. The cause for which Trust was created and exists is purely charitable and neither the funds of this Trust are used for any Government projects nor is this Trust governed by any of the Government policies.
8. The trust is neither owned, controlled or financed by the Government.
9. The trust is not obliged to provide any information to any one as it is not a "Public Authority" under the ambit of Section 2(h) of the RTI Act.
10. It is not a part of any Government Scheme or business of the Central Government and therefore not subject to audit of Comptroller and Auditor General of India (CAG).
11. The Trust has no expenditure in the management as it is managed on an honorary basis by all involved.
12. Both the trust are private trust, and the funds are private funds.

So Now it brings us to the essential question

Difference between the two trusts?

1. 1.Mere reading the objectives of both the trusts on its website, PM Cares misses on one line i.e.

"Contributions flowing out from the balance sheets of the public sector undertakings are not accepted."

So, while the PMNRF does not accept contributions from the PSUs, the PM Cares accepts it.

2. 2.While the PM Cares has denied RTI Application , the issue related to PMNRF is pending in the Delhi High Court in LPA No. 231 of 2016 and the issue: "Whether the Prime Minister's National Relief Fund is a "public authority" within the meaning of Section 2(h)(d) of the Right to Information Act, 2005 and accordingly, whether information pertaining to various transactions made by the Fund can be obtained by preferring an application under the said Act?" is pending consideration before the Delhi High Court after the matter has been referred to the third judge vide order dated 23/05/2018 upon divergence of opinion between the two Hon'ble Judges.

Conclusion:

While both the trusts are similar in nature, allowing PSUs to donate in PM Cares is like pumping money into a private trust by the government on request of the Prime Minister in its ex-officio capacity.

The MPLADS funds, Railways, Banks etc are just examples of how Government Money is directed to a private trust.

The government money, so received, would not be audited by the CAG and the trust would get INCOME TAX EXEMPTION on such donations.

The trust is not under the ambit of the RTI Act, so one wouldn't know how these funds are being channelized.

The trust could announce any amount to have been received and allocated or spent without being checked.

In the last six years, the government's eagerness to auction most of the PSUs such as BSNL, BPCL, etc., to private entities raises concerns towards such donations being voluntary or forced decisions.

It is also difficult to understand, why would the government come up with PMCARES, specially when PMNRF is available.

There seems no reason why the NDRF (National Disaster Response Fund) is ignored specially when it is managed by Central Government/ RTI is applicable/ CAG Audit is applicable.

(The author of the article is a Practicing Advocate - On – Record in the Supreme Court of India and a former Member Executive Of the Supreme Court Advocates- On – Record Association)