Friday 19 June 2020

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 28th 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 26th 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.  


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