PM-CARES ‘not subject to scrutiny’

IN March 2020, soon after the coronavirus disease began to spread in India, the Government of India created the Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM-CARES) Fund with the intention of fighting the public health crisis created by the pandemic. The fund is allowed to seek donations domestically and from abroad and is exempt from the purview of the Foreign Contribution (Regulation) Act (FCRA), 2010. However, activists, lawyers and political parties have questioned the transparency of the donations from the time the fund came into existence.

In the context of the “crackdown” on non-governmental organisations (NGOs) by cancelling the FCRA licence of thousands of organisations, it is significant to note that PM-CARES is permitted to accept foreign donations without a licence. As per information available on the PM-CARES website (the only source of information available on it), the fund “has received exemption from the operations of all provisions” of the FCRA. Additionally, as per Section 50 of the FCRA, the Central government can issue orders exempting any organisation (other than political parties) from the provisions of the Act if it deemed it necessary or expedient in the public interest, subject to conditions specified in the order. Simply put, PM-CARES can accept foreign funds and will not be subject to scrutiny.

An activist familiar with the cases filed in the Delhi High Court and the Supreme Court demanding transparency in funds collection says the reason they are seeking clarification regarding the legality and status of the fund is because PM-CARES uses the Government of India logo, the national flag, and the Prime Minister’s image. Cabinet Ministers and the Vice President have appealed to Rajya Sabha members to contribute to the fund. It is reported that Indian consuls across the world have been helping in raising foreign funds, which are to be routed to PM-CARES. To the rest of the world, PM-CARES appears to be an official government fund. The government is leveraging this.

Prime Minister Narendra Modi is PM-CARES’ chief trustee. The Ministers of Defence, Home Affairs and Finance are ex-officio trustees of the fund. The PM-CARES website says it is a Public Charitable Trust registered under the Registration Act, 1908, in New Delhi on March 27, 2020. In response to demands for transparency, the government argues that its finances are audited by a chartered accountant from a panel prepared by the Comptroller and Auditor General (CAG) of India and the report is posted on the PM-CARES website for public viewing. Experts in the social sector say the use of the nomenclature “charitable trust” is meant to circumvent scrutiny under the Right to Information (RTI) Act, 2005.

According to experts in the social sector, this freedom has been given although the fund does not meet the precondition of being a body established and owned by the government whose accounts are audited by the CAG. In response to demands of activists for information under the RTI Act regarding the grant of exemption, the government says PM-CARES is not a “public body” nor “the state” as it has not been set up through a Central or State Act. As it is not a public authority as per the RTI Act’s definition, which states that all bodies established by the government are public authorities, it cannot be subject to scrutiny.

Public interest litigation (PIL) petitions have been filed in the Delhi High Court and the Supreme Court demanding transparency about funds collected by PM-CARES. The RTI activist Commodore Lokesh Batra (retired) filed an appeal in June 2020 under the RTI Act seeking details about the exemption.

The Home Ministry responded by referring to Section 8(1) (e) of the Act, which allows the denial of information “unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information”. The Ministry also said it was not bound to give information to a “third party” as per the Act.

In May 2020, Samyak Gangwal filed a plea in the Delhi High Court challenging a June 2, 2020, order of the Central Public Information Officer (CPIO) at the Prime Minister’s Office (PMO), who refused to provide documents sought by him on the grounds that PM-CARES was not a public authority and, therefore, was not under the RTI’s jurisdiction. Gangwal’s plea sought direction to set aside the CPIO’s order and provide the documents applied for under the RTI. Hearing in the case is ongoing.

In fact, Gangwal had filed two petitions seeking a direction to declare the PM-CARES Fund a ‘state’ under the Constitution to ensure transparency in its functioning and also to declare it a ‘public authority’ under the RTI Act.

In response to the second plea by Gangwal seeking to define the legal status of the fund, the Centre told a bench of Chief Justice D.N. Patel and Justice Jyoti Singh in an affidavit, that the fund was set up as a public charitable trust, and not created by or under the Constitution of India, or by any law made by Parliament or any State legislature.

Within a month of its inception, PM-CARES raised Rs.3,076.62 crore, according to the auditor’s report on its website. The audited accounts for 2020-21 are yet to be posted.