"Centre Misled Court By Blatant Lies": Plea In Supreme Court Challenges Constitutionality Of PM CARES & PMNRF

A Special Leave Petition (SLP) has been filed before the Supreme Court against the dismissal of a PIL by the Allahabad High Court which challenged the validity of the PM Cares Fund and Prime Minister's National Relief Fund [PMNRF] in light of the Disaster Management Act, 2005.

The SLP notes that the High Court was misled to conclude that PMCARES Fund does not receive any budgetary support or any Government money. Instead, it notes that unimaginable and unfathomable amounts of public money are pumped unabatedly every day into the fund's coffers. It notes,

"It is a matter of great pity that this Hon'ble Court was misled by the Central Government into making the said observations, by blatantly lying, concealing and suppressing the material fact(s) that an ocean of public money is surreptitiously being poured into the PMCARES Fund by the Government ministries, agencies, and instrumentalities, as detailed below."

The SLP lists that contributions from Direct Taxes, Indirect Taxes, Election Commission of India, Ministry of Corporate Affairs, Ministry of Agriculture and Farmers Welfare, Ministry of Labour and Employment, Ministry of Culture, Ministry of External Affairs, Dept. of Expenditure, Dept. of Revenue, Ministry of IT, Ministry of Law and Justice, Ministry of I&B, etc., among others, is being poured into the PMCARES Fund.

It also contends that the money, even from Government-controlled funds such as 'Assistance related to Bhopal Gas Leak Disaster' meant for the victims of the Bhopal Gas Tragedy, has not been spared and is also being drained into PM Cares Fund.

The petition highlights that this continues despite the Trust-Deed of the fund, lying that the trust is neither intended to be owned, controlled, or substantially financed by any Government or any instrumentality. It argues,

"This shows that the intention behind the creation of this non-statutory Trust (PMCARES) by those in the helm of affairs of the Central Government, by the ordinary/registration route instead of by a legislation, while side-lining, bypassing and substituting the statutory NDRF and hoodwinking the 2005 Act, is not at all fair."

Dismissal of PIL by the Allahabad High Court

Earlier, a PIL was dismissed by a Division Bench of Allahabad High Court consisting of Justices Shashi Kant Gupta and Shamim Ahmed. The petitioner's case is that the High Court fell in a serious error of law by accepting the respondent's argument that an earlier judgment in Centre for Public Interest Litigation v. Union of India squarely covers the said PIL. It is contended that the said argument was 'misrepresentation and suppression of material facts of the case,' as the said PIL was quite distinct and different. Yet, High Court erroneously dismissed the petition without deciding the same on its merits.

The SLP notes,

"In CPIL (supra), this Court was not at all concerned with the validity/illegality of the PM Cares Fund, which is being raised in the present proceedings for the first time. As stated earlier, it is submitted that the petitioner in the present proceedings has questioned the very legality/validity of the PMCARES Fund, together with the PMNRF, in the light of the provisions of the 2005 Act."

The PIL also prayed for the publication and disclosure of the details of accounts, expenditure, and activities of the PMCARES Fund regarding the money collected. It also sought directions to the Central Government to transfer the collected money from the PMCARES Fund and the PMNRF to the NDRF.

Concerning the sought relief, the SLP holds that it is 'consequential and necessary,' as if the main relief of declaring the PMCARES Fund illegal invalid and redundant in view of the provisions of the 2005 Act is granted, then obviously the huge amount of money collected in the said funds cannot be suspended in a vacuum. It notes that it is rather incidental and imperative that the amount be transferred to the statutory fund, i.e., NDRF, created under the 2005 Act.

Beyond The Purview of RTI Act & Unaudited By CAG:

The petition alleges PM Cares Fund to be totally 'non-transparent, opaque, unaccountable,' as being out of the purview of the Right To Information Act, 2005 it is completely hidden from public view. The petition refers it to a brutal assault on the democratic soul and spirit of the Constitution of India and in teeth of the fundamental rights of the citizens guaranteed under Article 14, 19, and 21 of the Constitution.'

Emphasizing the non-availability of information brings to notice that there is no data or proof of the voluntary donations available anywhere, which may be a manifold of the involuntary ones. It argues that a citizen's Right to Know and utmost transparency, in governmental affairs, is the hallmark and touchstone of a true "Democracy". It notes,

"The ideals of Democracy can never be realized, unless there is transparency, accountability, and responsiveness in the affairs of governance. The citizen's right to information is increasingly being recognized as an important mechanism to promote openness, transparency and accountability in the affairs of the State."

100% Exemption from Payment of Income Tax- No Less Than A Government Trust Being Run By Government Money:

To argue that the fund is no less than a Government trust, being run on Government money, the SLP notes that the Government has granted a 100% exemption from payment of Income Tax to such income contributed by an Income Tax payee. It contends that otherwise, this money would have gone directly to the public exchequer through payment of Income Tax which is now instead reverting to the PMCARES Fund. It argues that this, in effect, amounts to the payment by the Government to the PMCARES Fund through an Income Tax payee. 

The SLP prays for grant of an ex-parte ad interim order, direction or writ, directing the Central Government to make full disclosure of the statement of accounts, activity and expenditure details of the PM-CARES fund to the Court and public at large, desirably, by way of publication on Government websites with timely updates.

It also seeks a direction for the audit of the PM CARES fund by the Comptroller and Auditor General along with the publication of reports from time to time.

The SLP is filed by Advocate Amit Paid, drawn by Advocates Rajesh Inamdar, Shashwat Anand, Jawed Ur Rehman, Ashutosh Mani Tripathi, Syed Ahmed Faizan, and  Mohd. Kumail Haider. It is settled by Senior Advocate Devdatt Kamat.