Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) is not a public authority under the Right to Information Act, 2005 (RTI Act), held the Appellate Authority of the Prime Minster's Office(PMO).
Holding thus, the Deputy Secretary of the PMO upheld the refusal of the Central Public Information Officer(CPIO) to disclose information sought by social activist Saket Gokhale relating to PM CARES Fund.
In the application filed on March 29, Gokhale had sought copy of the trust deed and trustees of the Fund, and also the exemption certificates granted to it under Section 12A and 80G of the Income Tax Act.
On June 5, the CPIO disposed off the application stating that the Fund was not a 'public authority' under the Act, and that the relevant information about the same was available in the official website.
Challenging this, Gokhale filed statutory appeal under the RTI Act, pointing out that the Prime Minister was the ex-officio chairman of the Funds and that as per the website, the Under Secretary (Funds) in the PMO is the honorary custodian of the matters related to the FUND.
He further stated that the several public sector utilities like Indian Railways have contributed to the PM CARES FUNDS. Therefore, it became a public authority under Section 2(h) of the Act, as per which an entity substantially financed directly or indirectly by the government is a public authority, he argued.
He also highlighted that Schedule VII of the Companies Act, 2013 was amended on May 29 to allow donations to PM CARES eligible to be counted as Corporate Social Responsibility (CSR) contributions.
Without specifically addressing the arguments raised by Gokhale in the appeal, the Appellate Authority stated in the order passed on June 29 :
"Since PM CARES Fund is not a public authority under the ambit of Section 2(h) of the RTI Act, 2005, no further information could be shared with you".
It was also reiterated that the relevant information was available in the website.
Gokhale was also told by the Authority that he could move the Central Information Commission within 90 days, if not satisfied with the response.
The Bombay High Court on May 14 had sought the response of Centre to a petition filed by a lawyer seeking an audit by the Comptroller & Auditor General of India and public declaration of the Funds.
On June 10, the Delhi HC sought the response of Solicitor General to a petition seeking a declaration that RTI Act is applicable to the Funds.
It was LiveLaw which first reported the news about PMO refusing information on PM CARES Funds citing the reason that it was not a "public authority".
That was with respect to an RTI application filed by one Harsha Kandukuri, LLM Student of Azim Premji Univeristy, Bangalore, on April 1 seeking information regarding the constitution of the Funds.
Disposing of his application on May 29, the Public Information Officer of PMO said ;
"PM CARES Fund is not a public authority under the ambit of Section 2(h) of the RTI Act, 2005. However, relevant information in respect of PM CARES Fund may be seen on the website pmcares.gov.in"
The copies of the trust deed, and the government orders/notifications relating to the PM CARES Fund are not seen uploaded in the official website of the fund.
What is 'public authority' under RTI?
As per Section 2(h) of the RTI Act, "public authority" is 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.
The definition of 'public authority' also includes bodies owned, controlled or substantially financed by the government and non-governmental organizations substantially financed, directly or indirectly by funds provided by the appropriate Government.
The PM CARES Fund was created on 28 March 2020, "with the primary objective of dealing with any kind of emergency or distress situation, like posed by the COVID-19 pandemic".
Prime Minister is the ex-officio Chairman of the PM CARES Fund and Minister of Defence, Minister of Home Affairs and Minister of Finance, Government of India are ex-officio Trustees of the Fund.
Following the creation of the fund, opposition members raised many queries as to why a separate fund was needed when the Prime Minister's National Relief Fund was already there.
The Supreme Court had dismissed two Public Interest Litigations (PIL) filed questioning the legality of the constitution of PM CARES Fund by saying that the petitions were "misconceived" and "as having a political colour".
It is also not clear if the PM CARES Fund can be subjected to audit by the Comptroller and Auditor General of India.
A news report by NDTV, quoting sources at the CAG office, said, "Since the fund is based on donations of individuals and organisations, we have no right to audit the charitable organisation".