TOPIC:- "According to PMO, the PM CARES Fund is not a ‘public authority’

u/s 2(h) of the RTI Act, 2005 and is therefore, beyond the scope of the Act. Do
you agree or disagree? Elaborate with the help of relevant legal provisions and
judicial decisions."

NAME:- AMAN KUMAR

ROLL NUMBER:- 10
SECTION:- A
SEMESTER:- 9

ACKNOWLEDGEMENT

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I would like to express my gratitude to my Prof. Ritu
Raghuvanshi who gave me the opportunity to do this
wonderful project on the topic"According to PMO, the PM
CARES Fund is not a ‘public authority’ u/s 2(h) of the RTI
Act, 2005 and is therefore, beyond the scope of the Act. Do you
agree or disagree? Elaborate with the help of relevant legal
provisions and judicial decisions.". The project helped me
learn how to do proper Research and i learned about many
new things while doing the project.

TABLE OF CONTENTS

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Serial TOPIC PAGE
number NUMBER

1 INTRODUCTION 4
2 Who is a Public authority 4
3 What is PM Cares Fund 4
4 Composition of the PM Cares Fund:- 4
5 Objectives of PM Care Fund 5
6 CONTROVERSY 5
7 What’s government‘s argument 6
8 What the Constitution of India says 6
9 RELEVANT JUDGEMENTS 6

10 Difference between PM Care Fund and Prime Minister 9

National Relief Fund

11 CONCLUSION 10
12 BIBLIOGRAPHY 11

 INTRODUCTION:-

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 Right to Information (RTI) is an act of the Parliament of India which sets out the
rules and procedures regarding citizens' right to information. It replaced the
former Freedom of Information Act, 2002. Under the provisions of RTI Act, any citizen
of India may request information from a "public authority" (a body of Government or
"instrumentality of State") which is required to reply expeditiously or within thirty days.
In case of matter involving a petitioner's life and liberty, the information has to be
provided within 48 hours. The Act also requires every public authority to computerize
their records for wide dissemination and to proactively publish certain categories of
information so that the citizens need minimum recourse to request for information
formally.1
This law was passed by Parliament on 15 June 2005 and came fully into force on 12
October 2005. 
RTI is a fundamental right for every citizen of India. The authorities under RTI Act
2005 are called quasi-judicial authorities. This act was enacted in order to consolidate the
fundamental right in the Indian constitution 'freedom of speech'. Since RTI is implicit in
the Right to Freedom of Speech and Expression under Article 19 of the Indian
Constitution, it is an implied fundamental right.
 Who is a Public authority?
As per the RTI Act2, a public authority means any authority, 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 the state legislature and
d) by notification issued or order made by the appropriate government.
It also includes:-
1)-body owned,
2)- controlled or
3)-substantially financed; non-governmental organisation substantially financed
directly or indirectly by funds provided by the appropriate government”.
 What is PM Cares Fund?
The "Prime Minister's Civil Assistance and Emergency Relief Fund" (PM Cares
Fund) was established on 27 March 2020 with the primary objective of dealing with any
kind of emergency like the COVID-19 pandemic in India. 

 Composition of the PM Cares Fund:-

1. Prime Minister is the Ex-Officio Chairman of the PM Cares Fund.
2. Defense Minister, Home Minister and Finance Minister are Ex-officio Trustees of the
Fund.

1
Www.wikipedia.com
2
Section 2(h) of right to information Act,2005

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3. The Prime Minister will have the power to nominate three people as Trustees of the
Board of Trustees, who will be eminent persons in the fields of research, health, science,
social work, law, public administration, and philanthropy.

 Objectives of PM Care Fund:-

1. The main objective of this fund is that in the occurrence of any kind of natural or
human calamity in the country, people will be given the task of developing infrastructure
along with financial and technical assistance. 
If required; necessary, Research & Development work and development of required
infrastructure will also be done to facilitate the construction of healthcare or medicine
facilities in the country.
2. If the trustees of the board deem necessary, financial assistance to the affected
population can also be provided.

 CONTROVERSY:-
Harsha Kandukuri, a law student at Azim Premji University in Bengaluru, filed an
RTI application on 1 April, asking for the fund’s trust deed and all government orders,
notifications and circulars relating to creation and operation of PM cares fund. On not
receiving a response, he filed an appeal to get a response on 29 May.
In a reply to an RTI filed on April 1 ,the PMO stated that the Fund is not a public
authority under section 2 (h) of the Right to Information Act, 2005, and therefore it
won’t be able to divulge information sought in the application.
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 in case of CBSE &
others Vs Aditya Bandopadhyay and others3,“Indiscriminate and impractical demands
under RTI Act for disclosure of all and sundry information would be counter-
productive as it will adversely affect the efficiency of the administration and result in
the executive getting bogged down with the non-productive work of collecting and
furnishing information.”
The question was also raised by Sunil Dattatray Tatkare, NCP MP from
Maharashtra Whether it is a fact that according to the Ministry the PM CARES Fund
was set up on March 27, 2020 by the Central Government thus making it a public
authority under the ambit of Section 2 (h) of the RTI Act, 2005 ?"
Anurag Thakur, Minister of State for Finance and Corporate Affairs, In reply has
said in the Lok Sabha that the Prime Minister's Citizen Assistance and Relief in
Emergency Situations Fund (PM CARES Fund), though set up by the Central
Government, is not a 'public authority' under Section 2(h) of the Right to Information
Act, 2005.
 What’s government‘s argument?
3
(2011) 8 SCC 497.

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 The argument against conferring PM CARES the status of a “public
account” seems to be that it is a fund based on voluntary contributions of
individuals and organisations, and as such, beyond the full-fledged scrutiny of the
CAG because as per the provisions of the Constitution the CAG's (DPC) (Duties,
Powers and Conditions of Service) Act, 1971 the duties of CAG does not include Audit
of Donations received from the public. Any contribution made to the PM CARES Fund
shall qualify as CSR or Corporate Social Responsibility and such funds are not required
to be audited as per law.

 What the Constitution of India says?

Under Article 266(2) 4, “public moneys received by or on behalf of the
Government of India”, which is not on account of revenue from taxes, duties,
repayment of loans and the like should be credited to the Public Account of India.

 RELEVANT JUDGEMENTS
Before moving ahead, the decision of Delhi High Court in National Stock Exchange of
India Limited v. Central Information Commission5 is noteworthy, wherein the Court
held that the three conditions - owned, controlled, and substantially financed, are
distinct. Even if one of the three is satisfied by a body, it would be sufficient to declare it
a public authority.

 Body owned, controlled or substantially financed by the appropriate government

The term “controlled” has not been defined under the Act. The Supreme Court, while
interpreting it in Thalappalam Service Coop. Bank Ltd. v. State of Kerala6, stated:
“The mere “supervision” or “regulation” as such by a statute or otherwise of a body
would not make that body a “public authority” within the meaning of Section 2(h)(d)(i)
of the RTI Act. In other words…the control of the body by the appropriate Government
would also be substantial and not merely supervisory or regulatory.”
The control of the government over the body should be substantial and not merely
supervisory or regulatory. In later decisions, courts have followed this position. I do not
agree with this view, since the Supreme Court construed the term “controlled” broadly
which is inconsistent with the objective of the RTI Act .
 Liberal Interpretation:
When a particular word in an Act admits two meanings or is vague, the court takes the
reference of the objective and reasons of the Act to find out the true intent behind the
word. I believe that the Supreme Court took a very broad meaning of "control" in
Thalappalam, defeating the objective of the RTI Act. Justice Bhat in Bhagat Singh v.
CIC7 has brilliantly noted the underlying idea behind the RTI Act.

4
Constitution of India.
5
WPC No.4748/2007 of 2010.
6
SLP No. 24290 of 2012.
7
146(2008) DLT 385

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 “14. A rights-based enactment is akin to a welfare measure, like the Act, should receive
a liberal interpretation…Therefore, the meaning of the words has to be construed in their
terms. Adopting a different approach would result in narrowing the rights and approving
a judicially mandated class of restriction on the rights under the Act, which is
unwarranted.”
Even if we consider the meaning of "controlled" as interpreted by the Supreme Court,
the PM Cares fund would be a public authority because of the deep and substantial
control exercised by the government over the Fund. Following are the few inclusive
points that support my proposition:
1. The Prime Minister heads the PM Cares Fund as ex-officio Chairperson of the
Board of Trustees along with the Minister of Defence, the Minister of Home Affairs and
the Minister of Finance as an ex-officio member of the trustee. Persons associated with
the trust are constitutional functionaries and hence it gives an impression of public office.
2. The Prime Minister, in his capacity as Chairperson, is authorised 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.
3. The Chairperson and members of the Board of Trustees are constitutional
functionaries and are holding a public office. They exercise sole discretion as to the
affairs and management of the trust, including disbursement of the Fund.
4. Advertisements seeking contributions to the PM Cares Fund have been made by
government agencies from their budgetary allocation.
5. The Prime Minister's office has made an appeal to the public for the contribution
to the Fund through media.Furthermore, the PM's pictorial representation has been used
in government advertisements making appeals for contribution.
6. Use of the State Emblem of India on the official website of PM Cares Fund
website and its logo gives an impression of a public office. Use of State Emblem is
explicitly prohibited under The State Emblem Act, 2005 unless its use by any authority is
notified by the government under this Act.
7. “Gov.in” is the official domain of the PM Cares website. The use of this domain
is regulated under the Ministry of Electronics and Information Technology
guidelines framed for the purpose of allocating the domain gov.in.
The aforesaid points suggest a deep and substantial control by the government.
Therefore, the PM Cares Fund is a public authority under the meaning of the RTI Act.
One may argue that control is exercised by the Prime Minister and his fellow
Ministers not in their constitutional capacity, but in a personal capacity as ex-officio
chairperson and members. In the PMNRF Case8, the Government of India relied on this
argument before the Delhi High Court.
This argument is bereft of reasoning and is not substantiated by material facts. In the
PMNRF case, Justice Ravindra Bhat took a view that the Prime Minister, as a
Chairperson of the trust, is acting in his constitutional authority. I do not see any reason
to dispute the views of Justice Bhat.

8
LPA 231/2016

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 Substantially financed or owned by the appropriate government:
In DAV College Trust v. Director of Public Instruction9, the Supreme Court relying
upon Thalappalam case, held that “substantial” under the RTI Act means a large or
considerable value. It does not necessarily have to mean majority or dominant.
A substantial amount of contribution to the PM Cares Fund has been made by the
employees of PSUs. A clarification is required here that this contribution is made by the
employees from their salary. It should not be construed as funding by the appropriate
government. Currently, no public data is available that suggests PSUs have made a
contribution to the PM Cares Fund from their budgetary allocation.
Since the PM Cares Fund’s trust has not disclosed the details of the donors, we cannot
conclude that there is substantial funding by the PSUs. A definite conclusion can be made
only if the information regarding the donors can be made public. As far as the ownership
of the fund is concerned, the PM Cares Fund is created under a trust and hence the
question of ownership by the government does not arise.

 Notification issued by the government:

The applicability of RTI Act on PMNRF was in question before the Delhi High Court
in the PMNRF Case . The question in dispute was whether the genesis of the PMNRF
can be attributed to a notification issued by the government. The PMNRF was constituted
following an appeal made by a way of press note in 1948 by then Prime Minister
Jawaharlal Nehru. Later, an application was filed in 1973 to register the fund as a trust to
get an exemption from Income Tax.
In the PMNRF Case, the High Court gave a split verdict. Justice Bhat was of the view
that the action of the Prime Minister inviting contributions and setting up a Committee
comprising himself along with the Deputy Prime Minister, Finance Minister and other
important state functionaries qualifies as an order made by the appropriate government.
Therefore, PMNRF must be deemed to be a ‘public authority’ under the RTI Act.
Justice Sunil Gaur, however, differed from his view and the matter was referred to the
Chief Justice to be assigned to a third judge.
The genesis of the PM Cares Fund has not followed the same course as that of PMNRF.
Though the Prime Minister made a public appeal via a press note and also on his Twitter
handle, the note clarified that PM Cares Fund has been set up as a Public Charitable
Trust. A charitable trust is required to be registered under the Indian Trust Act,
1882 or The Societies Registration Act, 1860. The inception of PM Cares Fund should
not be attributed to a notification issued by the government.

 Difference between PM Care Fund and Prime Minister National Relief

Fund10:-

Comparison PM CARES PMNRF

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AIR 2008 P&H 117
10
https://www.jagranjosh.com/general-knowledge/difference-between-pm-cares-fund-and-pmnrf-1593406787-1

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Purpose of To help poor people affected by To help those displaced from
establishment COVID-19 Pakistan during partition
Date of establishment  27 March 2020 January 1948
Chairman  Prime Minister of India Prime Minister of India
The Home Minister, Finance Minister
and Defense Minister are members of
Congress President and
the Trust while the Prime Minister can
Members representative of FICCI and
nominate 3 other eminent personalities
Tata Trusts.
from different areas as members of the
Trust.
To deal with natural
calamities, accidents and riot
victims and for medical
To deal with any kind of emergency
Expenditure on treatment like kidney
like COVID-19 epidemic.
transplant, heart surgery, acid
attack and cancer treatment
etc.
All contributors who donated
The entire amount donated by the
to PMNRF will get 100% tax
Tax rebate person, institution or company will
exemption under Section 80
come under the tax exemption.
(G) of Income Tax Act 1961.
During the meeting held on 23 March
2020, the Trustees of PM Care Fund It is audited by an
decided to appoint M/S SARC independent auditor outside
Associates Chartered Accountants, the government. Currently,
 Audited by
New Delhi as Auditor of PM Care M/S SARC Associates
Fund for 3 years. This firm is headed Chartered Accountants is its
by Sunil Kumar Gupta, who audits the auditors.
PM National Relief Fund also.
Rupee. 3800 crores
 Rs.9,677.9 crore (May 20, 2020),
Current Balance (December 2019) official
Unofficial data
data 

 CONCLUSION:-
If I concede the argument of Government that the PM CARES fund is not a ‘public
authority’ under the act as it is a Trust registered under the Indian Trust Act, & it is
different from any public office. CAG audits when the money is of a taxpayer whereas in
the current scenario it is in the form of donation and it is not a Public Authority. This is
also the reason why it is not made public under the RTI.

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 If I believe PM CARES Fund is ‘public authority’ under the Act. As per the Act, a
body is a public authority, if an appropriate Government exercises substantive ‘control’
over it. By denying PM CARES fund the status of ‘public authority’, it is only reasonable
to infer that it is not controlled by the Government. If that is the case,then who is
controlling it? The name, composition of the trust, control, usage of emblem, government
domain name everything signifies that it is a public authority. By simply ruling that it’s
not a public authority and denying the application of RTI Act, the Government has
constructed walls of secrecy around it.
Transparency enhances the credibility of any institution. The absence of a clear
objective and rationale behind the creation of the PM Cares fund, when PMNRF has been
in existence since 1948, cast doubts over the newly created body. The public character of
the fund demands PMO to disclose the trust deed and other relevant information in
compliance with suo motu disclosure under the RTI Act. This disclosure would instill a
sense of trust in the public and allay the fears of lack of transparency.
The very purpose of having separate public account of India under Article 266(2), as
against the Consolidated Fund Of India [Article 266(1)] and the Contingency Fund of
India (Article 267), is to cover receipts that do not fall in either of these two funds.
Similarly, since PM CARES conforms to being a “public account” and as vast sums of
money have been collected manifestly at the behest of the government of India, allowing
the CAG to audit it will a step in the direction of transparency and instill public
confidence in the Fund.

 BIBLIOGRAPHY

1- https://www.theleaflet.in

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2- https://www.jagranjosh.com
3- https://jsaideepak.com
4- https://www.thequint.com
5- https://economictimes.indiatimes.com
6- https://scroll.in
7- https://www.nationalheraldindia.com
8- https://www.barandbench.com
9- https://www.livelaw.com
10-https://www.wikipedia.com

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