Spirit of a living Constitution : In the name of individual and liberty

 

In the early winters of 1948 when the draft constitution was made open for public comments and some constituent assembly members like B. Pattabhi Sitaramyya wanted to put ‘unity of nation’ before ‘dignity of Individual’, B. N Rau who was advisor and engineer to the draft rejected the proposal by emphasizing “the reason to for putting the dignity of individual first was unless the dignity of an individual is assured, the nation cannot be united”[1] and thus reinforcing that Individual is at the heart of the constitution.

Constitution thus is not only a document which marked end of British dominion status and birth of constitutional democracy in India but also provided Indians with a tool to enforce their individual liberty and rights. India unlike Malaysia or Singapore brought the indigenous element of novelty by enacting its own ‘constituent assembly’ and wrote the constitution at its own terms. It is reflected when Nehru laid down the object and resolutions in the assembly and emphasized how people of India are at the core of the constitution-making process. He said, “…But you must not ignore the source from which this Assembly derives its strength. Governments do not come into being by State Papers. Governments are, in fact, the expression of the will of the people. We have met here today because of the strength of the people behind us and we shall go as far as the people not of any party or group but the people as a whole--shall wish us to go. We should, therefore, always keep in mind the passions that lie in the hearts of the masses of the Indian people and try to fulfill them.”[2]

( Jawahar Lal Nehru Reading Objectives and Resolution in Constituent Assembly)

 

Constitution therefore is a document which marked swift ‘transfer of power’ from them to us but it is not only a document for governance or governments but also it directly affects the rights of individuals. Many have accused constitution as an elitist document or as a “lawyers paradise”[3] but contrarily it has enabled its people equality, liberty, and fraternity amongst many other constitutional rights in a democracy making constitution a people’s document and people have played a central role in its organic development. It is pertinent here to note that today, when we celebrate 71 years of its adoption its the importance is quintessential or rather, even more, today when the spirit of the constitution, constitutional statesmanship and individual rights are apprehensive of being compromised while liberty in numerous instances are increasingly curtailed contrary to reasonable but emancipatory reading of rights in the Constitution witnessing a slippery constitutional adjudication of right.

Constitution of India is an ambitious project[4] and as said by Dr. B R Ambedkar it is “Vehicle of life” for individuals, which has been ever-growing like branches of a tree to feed its citizen with changing times but yet its roots remain intact to further liberty, equality, and fraternity. It is a consciously engineered document which has seen wear and tears of governments, horrors of emergency, ideological changes and yet when many constitutions like of Pakistan (framed almost in same era) succumbed to majoritarianism, India held it's head and nose high and One of the reasons which is to be attributed is India’s commitment to its constitutional mandates set by its forefathers, its flexibility in amending it as and when time calls for, its beautiful cosmology of checks-and balance through Judicial review and constitutionalism, collectively preserving the spirit of the country. The document is a permanent source of constitutional governance but in no way has attained permanence which is visible in Pandit Nehru’s speech when he said “….While we want this constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitution.”[5]

It is on this premise that it can be said that the constitution of India is not conservative and limited to surface or textual reading of constitution but is transformative[6] and entails a larger picture of constant development of rights which were originally not covered but evolved via judiciary which was enabled by the living tree[7] called Constitution. This transformative reading is mandated by the idea of written constitution which again ensures the wellbeing of the individual and ensuring the maximum exercise of right to the individual. However this emancipatory reading of rights has also seen a gradual shift in different phases of interpretation of the constitution from mere textual reading to exploring beyond text and looking for intent or purpose.[8] It has evolved from a restrictive reading of ‘Procedure established by law’ in A. K Gopalan[9] to evolving a basic structure doctrine limiting the power of parliament to abridge Individual right in Keswananda Bharti[10]  and then expansive reading and overruling Gopalan in Maneka Gandhi[11] and central argument in all of it has been the maximum extension of rights to an individual against state.

(Shri MC Mehta)

(Shri AK Gopalan)

Interestingly in each of these cases it was an individual who was at core but to their credit this struggle led to the significant constitutional developments which formed the basis of rights jurisprudence in India and the credit can even be extended to Individuals like MC Mehta, J K S Puttuswamy, Navtej Johar etc to name few. As Rohit Dey argues, “From the earliest days of India’s independence, citizen’s political action has influenced the court and reveals a long history of public interest litigation driven by litigants rather than judges”[12] It is therefore a myth worth bursting that the cosmology of constitution is only for a certain class or that it is a guide on governance because constitution affects every last individual of the country and it is those individuals who have played a significant role in development of constitutional principles . Constitution without its people is nothing but a mere letter and the organic character and dynamism of the constitution is due to its individuals. Individuals too have used constitution as a tool to secure rights in everyday chores and contributing in development of ideas of new rights. The spirit of a living constitution is in Individual upliftment as constitution works for all and to summarise in words of Justice D Y Chandrachud, “The Constitution works for even those who don’t believe in it”[13].

(Shri Keswananda Bharti)

It is true , we did not imagine the horizons of rights extended to the individual when we enacted, adopted and gave ourselves this constitution on 26^th day of November of 1949 but due to its living, organic and transformative nature at one hand and Judicial evolution of right based doctrines by purposive interpretation at other, we have seen the essence of constitution being realised and rights being extended to individuals. It is due to this document that today every citizen of the country is assured of their liberty, their choices and even though there are instances not warranted if it was not for the constitution, what would have been the fate of individual against state?

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[1] III, Constituent Assembly Debates, 4.

[2] I, Constituent Assembly Debates, 1.

[3] Ivor Jennings described the Constitution of India as “lawyers’ Paradise”

[4] Arun K Thiruvengadam, The Constitution of India: A contextual Analysis, HART PUBLISHING OXFORD AND PORTLAND 2017.

[5] VII, Constituent Assembly Debates, 322-23.

[6] Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts, HarperCollins Publishers India 2019

[7] Thulasi K Raj, Ways to read the Constitution, The Hindu  https://www.thehindu.com/opinion/op-ed/ways-to-read-the-constitution/article24794977.ece

[8] Chintan Chandrachud, The four phases of constitutional interpretation, The Hindu https://www.thehindu.com/opinion/lead/the-four-phases-of-constitutional-interpretation/article30653706.ece

[9] A.K Goapalan v. State of Madras AIR 1950 SC 27.

[10] Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461.

[11] Maneka Gandhi v. Union of India 1978 AIR 597.

[12] Rohit De, A People’s Constitution, Princeton University Press 2018.

[13] Video Lecture by Justice D Y Chandrachud on Why Constitution Matters at Bombay Bar Association , available at https://www.youtube.com/watch?v=vr1Dc_-ZKbQ

The Mystery of Encephalitis in Gorakhpur : A Perpetual Health emergency

(Every year in Mansoon the number of cases due to encephalitis rises exponentially in the Gorakhpur region. This time already in a health crisis struggling with COVID19 the situation,  is daunting because of the two-front battle. Resharing this article, written by Anubhav Kumar  in November 2017 for The Analysis,  to understand the mystery of Encephalitis  after the tragic death of 70 infants )

 

"When central government bestowed Gorakhpur with AIIMS last year as they promised one in purvanchal instead of Varanasi (PM’s Constituency), it came as surprise to many but for those who have known this region for long, it was need of the hour to curb the alarming situation persistent since the late ’80s, Encephalitis or popularly called Japanese Encephalitis.

Cut to the Year 2017, it would go down in Indian history for two most mooted people and place, Yogi Aditya Nath and Gorakhpur both fiduciarily related to each other. Why so? Well It is unfortunate that this August, close to 70 infants died in Gorakhpur’s BRD Medical College within 24 hours allegedly due to a shortage of oxygen supply. The Country started mourning only when one of the ministers said that it is common, death of infants in monsoon in the Gorakhpur region, it took anger out of every common citizen. But would you be shocked if I were to say, yes it is true? Will it be surprising to know that due to this mishap Gorakhpur finally got its due attention on this issue? Well not justifying deaths in any circumstances but this incident may be an "unfortunate" blessing in disguise as it was a tight slap on administration, government, and people of Gorakhpur as to date 6500 infants have died in this region since 1978 due to this deadly disease as BBC Reports. (http://www.bbc.com/news/world-asia-india-19825565 )

THE LEGACY OF ENCEPHALITIS:

While this deadly disease has its presence around the world, this region is worst globally affected. it first surfaced in 1978 and till now the death toll of infants is daunting. Children aged 0-15 are worst affected as their immune system is considerably weak. Japanese Encephalitis or “Navki Bimari” is a mosquito-borne disease spread majorly due to water contamination and allegedly by a virus caused by Pigs and Birds. JE is still incurable. An unverified source says that last year few Japanese scientists conducted a test and found a new type of virus which changes its shape and can’t be determined, this corroborates with a doctor’s statement given back in 2006

 “In the past six years, children have been dying of other forms of viral encephalitis, the exact cause of which is unclear.” (http://www.bbc.com/news/world-south-asia-15269441 )

The monumental deaths hence are not shocking but the alarming situation is almost 30 years now it couldn’t be curbed. In year 2005 a virulent outbreak caused death of 1000 children here and it went unnoticed by the mainstream media and no substantive action was taken. (http://www.bbc.com/news/world-asia-india-24440141 )

 

WHY GORAKHPUR? THE GEOGRAPHY AND OTHER DYNAMICS

Gorakhpur is an agriculture rich region also called Manchester of eastern Uttar Pradesh for it is the focal point of business to adjoining districts? Located about 100 Km to the International boundary of Nepal it has a continuous supply of water by rivers like Rapti and tributaries. While it is known for its Geeta press, Gorakhnath Temple and Railway platform it is also a fertile land with groundwater level only up to 50-60ft facilitating irrigation The Region consists of 10-12 Adjoining districts and Gorakhpur serves as a nodal point wherein BRD Medical College is the only hospital with the capacity to treat people suffering from this disease with almost 100 dedicated beds. Every year in monsoon and due to Nepal’s release of water flood-like situation arises and due to lack of proper infrastructure and sanitation in this ‘bowl-shaped’ region, the rainwater gets contaminated with the groundwater and becomes still and therefore is passed on by uncontrolled pigs in this region and the mosquito. “Over the years, there have been cases in the area which are clinically different from one another. JE is one kind of encephalitis which falls under a spectrum of diseases called Acute Encephalitis Syndrome (AES). Doctors in endemic regions in U.P. have found cases with similar symptoms but without the virus, leading to some debate over the cause of the disease. While public health experts have found a difference in case definitions across Eastern districts of U.P., this is something the Indian scientific community is still trying to understand.”

(https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwioqZPYtvXWAhUdTo8KHbLKCx0QFggnMAA&url=http%3A%2F%2Fwww.thehindu.com%2Fsci-tech%2Fhealth%2Fjapanese-encephalitis-a-deadly-disease-explained%2Farticle19486806.ece&usg=AOvVaw2JN9BplwGr1Yn2OPl8Y1qC)

(Source: News 18) 

GOVERNANCE AND OTHER INITIATIVES:

It is clear that the region lacks basic infrastructure and it took almost 30 years and close to 6500 deaths to locate this problem on Medical Map. It may have surfaced in mainstream media now but it was never unknown to State and Central government and Its dynamic and vocal former MP, Yogi Aditya Nath. The Central Government started a two-massive vaccination drive in the year 2006 and 2010 and the State government of BSP in 2009 distributed millions of rupees in pursuance of treatment of this disease in Medical College Gorakhpur where 136 researchers were hired but the scheme ran out of money and no further allocation happened. In 2009 a team of American Scientist took water sample from this region whose results are not known in public yet reports BBC. Earlier this year in March Vaccination drive resumed in 38 districts of UP but wasn’t supplemented with proper sanitation and access to clean water. Yogi Aditynath who has been MP from Gorakhpur in 1998 is remembered for his speech in Lok Sabha where expressing the plight of people he broke down but a close look suggests that in 15^th Lok Sabha i.e. 2009-2014 He mooted on this only 5 times out of 82 debates while when his party came in power for three years before becoming CM he debated only 3 times on this out of his 56 times. The people of this region have suffered a lot and the only reason is the Welfare intent and lack of infrastructure, access to freshwater and uncontrolled pigs around the City.

(Amar Ujala)

Amidst all the gift of AIIMS looks only positive which was due to this region for long and we can all be hopeful that CM Yogi would pay back to this city the love he got as MP Yogi by educating people, providing better health facilities because a Metro in Gorakhpur may not be a necessity but to curb the rising death toll of innocent infants and provide better health and medical facility certainly may be.

 

(Visit The Analysis at  https://theanalysis.in/ )

All images are subject to copyright 

Sandwiched between COVID and Economic Sanctions: Is India’s renewable energy on right track?

Prime minister recently inaugurated allegedly India’s largest solar plant of 750 MW in rewa[1]  boasting it’s ability to be a global green energy hub. It is specifically flattering because of its timing, at a time when a wave of pessimism in the energy sector is grasping  this comes as a testament of Indian’s renewable energy potential and dedicated energy policy.  However, today the Renewable Energy Industry is fighting battles on two fronts, one with the pandemic and other against Chinese aggression,  by responding through economic retaliation, all of  which we shall discuss objectively in the course of the article.

The COVID 19 Pandemic has had a fatality on almost everything in this world which coerced us, humans, to introspect way of life and governments, to rethink & change policies. Amidst all of its horrors, the ominous mark which it has left on the economy is dismaying and Power/Energy sector is not alien to the havoc of the virus. According to a report[2], India already witnessed a decrease in demand for power by 25-30 Percent in May-June which if coupled with reduced collection may adversely impact Distribution companies by creating a cash gap of approx. Rs 40,000 cr and it can go worse[3] . In southeast Asia manufacturer rely heavily on China for its ‘cheap’ raw material to the solar industry, which due to this respiratory illness has significantly affected and this strain on supplies will affect the manufacturer adversely consequently leading  to increased prices .As an architect of the International Solar Alliance[4] and to live up to its commitment of producing 175 GW of Renewable energy by 2022[5], India however had to show leadership not only to tackle the effects within its territory but also  in low- and middle-income countries in Southeast Asia

India, even in such daunting times, has fared reasonably well owing to measures it took through MNRE like an extension of deadlines to the manufacturers by MNRE on contracts invoking force majeure clause.[6] Similarly,  The Reserve bank of India also took fiscal measure on a cut of repo rate to 4.4% and provided a three-month moratorium and these measures by MNRE and GOI has helped to provide a cushion to the industry in the age of ‘new normal’. Hence even in these scary circumstances, there are rays of hope for the Renewable energy Industry in India to achieve energy accessibility to all at an affordable price and realize the Vision of 2040 laid by New Energy Policy of Niti Ayog in 2017[7] An increase in share of renewables in energy basket from under 10 Percent to well above that level between the pre lockdown time indicates that the supply from renewables was not curtailed by utilities which is one of the many positives industry shall draw motivation from.[8]

While these measures have given the industry a hope for a revival of energy transaction, looking beyond the horizon of ambitious goal of achieving 175 GW Renewables Energy (100 GW Solar of which 40 GW Rooftop Solar PV) is becoming hard to scale. As per, India 2020 Energy Policy Review, India has emerged as a global leader in renewable energy, notably in solar power. By end of November 2019, grid-connected renewable electricity capacity had reached 84 GW, including 32.5 GW from solar PV and around 37 GW from onshore wind as well as small hydro.[9] but are these also indicative of trends of production in next two years , is the real question.

This is becoming increasingly challenging because of our neighbor China and the policy which MEA in coherence with MNRE has taken in either to check dumping of cheap Chinese solar product in India or in national interest owing to how the events unfolded recently. It is pertinent to note here that,  China virtually controls the entire “value chain” from silicon to a module and it supplies almost 85% of solar products to the solar world and hence trade with China holds great stakes .These cheap products have been one of the reason production has grown by leaps and bound here but price of solar energy has reduced drastically from Rs 17 when in 2010 first National Solar Mission was launched to Rs 2.44 in the latest bid . Now, recently India announced to impose 20-25 % of customs duty on solar modules and 15% on cells, making it 40% for both, from August 1, 2020[10]. Earlier a safeguard duty was imposed by the ministry of 25% on import of Solar Panel from China and Malaysia with a pretext that domestic players are at disadvantage and are not able to compete with foreign market in India’s nascent industry as these imports have had serious Injuries to domestic players and was in the public interest to impose safeguard duty[11]. In the current decision, however, the ministry is also giving exemption to manufacturers in form of a “pass-through” which is,   Chinese imports for public solar projects will be exempted from duty if power purchase agreements ( PPA) are signed before the implementation of duty, which is proposed from August 1 this year. This step in no manner serves the benefit of domestic producers as they will have no orders for the next 2-3 years and this can potentially add more woes to them amidst the pandemic.[12] instead  it will additionally  cost the government of India nearly 50,000 Crores in foreign exchange as per the All India Solar Industry association (AISIA) . Safe to say,  tariff impositions have never really worked, in a year since the safeguard duty was imposed in 2018, imposition there were reports which identified the inability of such step to propel the domestic market and instead had stalled the major projects to circumvent the two years’ time frame according to  Bloomberg[13]

The sanctions, therefore, are vexing the industry in the form of decreased import of solar PV increased economic burden in foreign exchange, and leaving the domestic producers in distress at time when he industry is trying to recover from the jolt of a pandemic.  To ensure continuous progress in the growth of renewables, auction design, grid connections and the financial health of the power distribution companies (DISCOMs) are critical elements for reform needed this hour.  Its also time where we need to provide the escape velocity to the sector and these trade sanctions are certainly not helping the cause .India is a country that can enhance its energy basket and secure its energy access and be the leader of green energy in the world making India, as PM said ‘aatmnirbhar’ in energy sector.

 

(All images are subject to copyright)

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[1] https://www.thehindu.com/news/national/other-states/india-most-attractive-global-market-for-clean-energy-modi/article32040039.ece

[2] https://economictimes.indiatimes.com/industry/energy/power/indias-power-demand-falls-over-25-pc-to-125-81-gw-on-april-2/articleshow/74965504.cms?from=mdr

[3] https://energy.economictimes.indiatimes.com/energy-speak/renewable-energy-new-normal-and-impact-of-covid-19/4167

[4] https://isolaralliance.org/

[5] PTI, India to achieve 175 GW renewable energy ahead of 2022 deadline, The Hindu Business line (Feb 28 2018) https://www.thehindubusinessline.com/economy/india-to-achieve-175-gw-renewable-energy-ahead-of-2022-deadline/article22838424.ece

[6] Office memorandum, MNRE Dated 20^th March 2020, https://mnre.gov.in/img/documents/uploads/file_f-1584701308078.pdf

[7] New Energy Policy 2017 https://niti.gov.in/writereaddata/files/new_initiatives/NEP-ID_27.06.2017.pdf

[8] https://energy.economictimes.indiatimes.com/energy-speak/beyond-the-horizon-covid-19-will-accelerate-the-energy-transition/4370

[9] India 2020 Energy Policy Review , Niti Ayog https://niti.gov.in/sites/default/files/2020-01/IEA-India%202020-In-depth-EnergyPolicy_0.pdf

[10] https://www.livemint.com/news/india/india-to-impose-tariff-barrier-on-solar-cells-modules-inverters-from-30-july-11592885034223.html

[11] Staff Reporter, India levies 25% import tariff on Chinese, Malaysian solar panels , Asian Power,(July 18 2018) https://asian-power.com/regulation/news/india-levies-25-import-tariff-chinese-malaysian-solar-panels

[12] https://economictimes.indiatimes.com/news/economy/finance/india-to-lose-rs-50000-crore-in-forex-if-solar-developers-given-exemption-from-customs-duty-on-chinese-imports-aisia/articleshow/76900911.cms

[13] Anindya Upadhyay, India Solar Duty Fails Domestic Producers as Demand Dwindles, Bloomberg, (Jan 30 2019) https://www.bloomberg.com/news/articles/2019-01-29/india-solar-duty-fails-domestic-producers-as-demand-languishes.

The curious case of PMCARES, RTI and Spirit of democracy

In a democratic country, check on power is imperative for not only preventing the rise of slightest authoritarian tendencies but also to ensure a seamless flow of information on governance to its people who elect their representative in order to avoid the demons of corruption which plagues the executive. Transparency and accountability are, therefore, indispensable attributes of democracy which challenges the traditional opaque governance in a standardized democratic country. India has had a fair share of struggle to achieve this transparency, which ended after a long revolution for "information" in 2005,  marked by “The Right to Information Act “(The Act) also popularly called people’s legislation. The underlying object of the Act is to “secure access to information under the control of public authority to its citizens” thereby strengthening the democratic ideals. Hence RTI is one such tool in hands of citizen which empowers them to seek information, inspect any document pertaining to governance as it is a facet of fundamental right under Art 19(1) as held by the Supreme Court in 2013.[1]

Recently the Prime Minister’s Office (PMO) in a reply to an RTI filed by a Law Student seeking information on fund created to battle COVID19 financially,  asserted that “PM CARES” is not a public authority under the Act and hence is not obliged to disclose the information sought[2]. Earlier, another RTI request on the issue, filed by activist Vikrant Togad, had also been refused in April, with the PMO citing a Supreme Court observation that “indiscriminate and impractical demands under RTI Act for disclosure of all and sundry information would be counterproductive”[3]. The PM CARES Fund is an abbreviation of 'Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund' which was created, “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.”[4]

In this pretext the outright refusal of providing information on PMCARES funds and its deed has erupted a discontent amongst not only the legal fraternity but also in general discourse as it defeats the spirit of democracy which entails urbane dissemination of information on working of governance . In this blog I assert and the reason that PMCARES is a public authority and it can’t evade information citing non-application of the provisions of the Right to Information Act of 2005.

Scheme of RTI Act:

Section 3 of the Act grants a statuary right to all “citizens” to have a Right to information. The information on which an RTI could be filed is that information which is held by or under control of a “public authority”.It, therefore, means that the information shall be not only authoritatively held but it must be held or under control of a public authority only and not otherwise.  Since the PMO claims PMCARES not to be a “public authority”, it’s now imperative to understand the definition and its application.

As per Section 2(h) of the Act, a Public authority 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, and includes any—

(i) Body owned, controlled or substantially financed;

(ii) Non‑Government Organization substantially financed, directly or indirectly by funds provided by the appropriate Government;

The definition has two limbs where, in first part, the word “means” makes the definition exhaustive and complete while in the latter end “includes” enlarges the scope of interpretation to go beyond the meaning of definition clause keeping the view and nature of the language and object of the provision.[5]

 

PMCARES and Public authority:

The Non-Charitable fund does not find a fit in clauses “a” to “c” of the definition but definitely attracts 2(h)(d)(i) & (ii) tentatively as its name, usage of the emblem, the composition of the trust and usage of government domain signifies a “control” of PMO over the body making it a public authority. In the case of PMNRF vs Aseem Takyar[6] Justice Ravindra Bhatt in a similar case held “Though other essentials do not apply to 'Fund', the last parameter "body owned, controlled or substantially financed" will bring the PMNRF within the definition of a public authority, as validated by Justice Ravindra Bhatt based on the interpretation of 'control' of Government over the fund.”

While the exact order or notification is not available in public domain related to the creation of the fund, it is not disputed that PMCARES was constituted on the appeal of the PM’s office via a Press Release in the PIB shall be treated as an “order” under 2(h) (d) of the Act which, while clarifying contribution to PMCARES fund as an eligible activity under CSR the Ministry of Corporate affairs, in a memorandum dated 28^th March, did mention about, on its creation by the government[7]
The extents of control PMO exercises and the composition of the fund where the PM shall be ex-officio chairman and Minister of Defence, Minister of Home Affairs and Minister of Finance, Government of India are ex-officio Trustees of the Fund are all indicative of substantial control over the body. In addition to this, the PM shall also have the power to nominate three trustees to the Board of Trustees who shall be eminent persons in the field of research, health, science, social work, law, public administration and philanthropy

In terms of donations, the finance ministry has reportedly requested the central government employees for regularly compulsorily’ donate a single day's salary towards the fund every month till March 2021[8] and it has also made it available for exemptions under the IT Act as it says by amendment dated 26^th May, “Donations to PM CARES Fund would qualify for 80G benefits for 100% exemption under the Income Tax Act, 1961”.[9] Donations to PM CARES Fund will also qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the Companies Act, 2013.These all benefits, mandatory salary deduction of employee for the fund does indicates not only control of the government but also makes it substantially financed by the central government as per the test laid down in DAV College Trust Management v. Director Public Instruction (2019). Hence in all circumstances the PMO or CIC can’t deny to provide the information related to the fund as it very well satisfies all the essentials to be a ‘public authority’

Conclusion: Defeating the purpose of RTI

While dealing with any body or institution which is performing a function so close to the government and is supposed to be for welfare of citizens, the object of the act has to be kept in consideration by the CPIO which is to increase the flow of information furthering accountability and transparency “purposively”. Nature, formation, purpose and its functional character shows that both PM NRF and PM CARES Funds are public authorities under RTI Act and they should be answerable. There is a substantial control exercised by the PMO over the fund created and hence the application of the RTI Act is unavoidable in all circumstances.  The outright refusal of the PMO is not only detrimental to the democratic spirit but also defeats the purpose of the Act whose objective is to promote accountability and transparency. In such a scenario when Information empowers the people and enables them to properly exercise their rights legal, political, social and economic, any attempt to dilute the seamless flow of information not only raises concerns over the “fund “ and its use but also is an assault on its citizens exercise of a fundamental right to seek information to check its representatives.  

Note: All images may be subject to copyright

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[1] Thalappalam Ser.Coop.Bank Ltd. &. Ors vs State Of Kerala & Ors (2013)

[2] https://www.thehindu.com/news/national/coronavirus-pm-cares-is-not-a-public-authority-under-rti-act-pmo/article31712146.ece

[3] https://thewire.in/government/pmo-rti-pm-cares-supreme-court

[4] https://www.pmcares.gov.in/en/web/page/about_us

[5] P. Kasilingam v. P.S.G College Trust (1995)

[6] https://indiankanoon.org/doc/66482610/

[7] https://twitter.com/SaketGokhale/status/1273868119669305344

[8] https://www.thehindu.com/news/national/coronavirus-finmin-fiat-to-staff-on-monthly-donations-to-pm-cares/article31383969.ece

[9] http://www.mca.gov.in/Ministry/pdf/Notice_27052020.pdf