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.
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
[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
[5] P.
Kasilingam v. P.S.G College Trust (1995)
Perfect sir👍👍
ReplyDeleteThank you
DeleteVery well written. Keep up the good work.
ReplyDeleteThank you Anjali
DeleteInteresting read :)
ReplyDeleteThank you Aby!
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