PM CARES Fund Is A State, High Constitutional Functionaries Have Represented It As Govt Of India’s Initiative: Sr Adv Shyam Divan To Delhi High Court

Senior Advocate Shyam Divan on Tuesday told Delhi High Court that PM Cares Fund is a State under Article 12 of the Constitution of India and that highest constitutional functionaries have represented it to be an initiative of the Government of India and called for donations and contributions from public.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad was hearing a plea moved by Samyak Gangwal who has sought a declaration that the fund is "State" under the Constitution.

Gangwal had moved court in 2020 after the Prime Minister's Office (PMO) refused to disclose information about the PM Cares Fund under the Right to Information Act, 2005.

“Our case is that as far as PM Cares is concerned, it is nothing but a State and you can’t, through a clause in the Trust Deed (of PM Cares Trust), say that I’m not subject to the Constitution and that it’s a private trust,” Divan submitted on behalf of Gangwal.

He said that even the highest constitutional functionaries like the Vice President and other Ministers represented the fund as Government of India’s initiative.

Referring to various public announcements made by the government functionaries, Divan said that such persons making the statements are “people of responsibility”.

Highlighting one such instance of the Cabinet Secretary of the Government of India, Divan said: “This is the highest level of bureaucracy. This is the Cabinet Secretary of Government of India…appealing to the public to “contribute to government’s efforts to deal with the unprecedented situation.”

Divan further said that various official memorandums (OMs) were also issued by the Ministry of Labour and Employment in relation to the PM Cares Fund.

“This is across the ministries and high government functionaries. No one comes and say that all these were making any mistakes. It is nobody’s case. All are valid representations made to the citizens of India to be treated at highest importance,” he submitted.

Divan also said that various statutory amendments were also introduced “in line with the fact that PM Cares Fund is the fund of Government of India.” He referred to the amendment made in Income Tax Act through an ordinance introduced in 2020 which amended section 10.

He said that even if assuming that the fund is not State, then symbols like Government of India, Ashoka Pillar or the government’s website cannot be used as it gives an impression to the public that it is a State.

“If you’re not [State] then you can’t use the symbols like government of India, Ashoka Pillar, you can’t use the government of India website. Because public thinks you’re nothing but a State. You cannot have a hybrid situation,” he said.

Divan added: “When you have high constitutional authorities setting up the trust which has ex officio members, it is nothing but an element or aspect of State. Merely by declaring it is not State would not exclude or exempt you from the constitutional fetters.”

Furthermore, he said that the Fund cannot be contracted out of the Constitution of India merely by introducing a “self declaration” stating that it is not a State.

“If it is not a State then surely they must publicize that it is not the fund of Government of India. They must desist from using PM or the abbreviation on website of trust or official communication,” he said.

Divan also submitted that there is a certain “gravitational force” which is imposed by the Constitution of India, adding that there is no “escape velocity” from the same.

“If you’re allowing situation like this then dozens and hundreds of constitutional functionaries, judges, bureaucrats operating in the field of government, then at all levels of the government, let’s say collector…he will establish private trust and say you please contribute to X, Y, Z," he said

In an affidavit filed by Prime Minister’s Office (PMO) on January 28, it has been argued the PM Cares Fund is not a “State” under Article 12 of the Constitution of India and does not constitute as a “public authority” under Right to Information Act, 2005.

It also states that the PM CARES Fund has been set up as a Public Charitable Trust and that it is not created by or under the Constitution of India or the Parliament or any State Legislature.

Gangwal has sought a declaration of the PM CARES Fund as a State. This, he said, would attract consequential directions for disclosing the Fund's audit reports periodically; the Fund's quarterly details of donations received, utilization thereof and resolutions on expenditure of donations.

In the alternative, it is contended that in case PM CARES Fund is not a State under Article 12, then the Centre should widely publicize that it is not a Government owned fund. The petition also seeks that PM CARES Fund should be restrained from using "PM" in its names/ website, State Emblem, domain name "gov" in its website and PM's Office as its official address.

Title: Samyak Gangwal v. CPIO, PMO