PM CARES Fund must submit to rigours of Constitution or not publicise itself as State, says Delhi HC

New Delhi:‘Cosy arrangements’ cannot be allowed under the law and the PM CARES Fund must either submit to the rigours of the Constitution or not publicise itself as “State”, the Delhi High Court was told on Tuesday. The submission was made before a bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla, which was hearing a petition filed by Samyak Gangwal, seeking to declare the PM CARES Fund a “State” under the Constitution. The Centre urged the court to defer the hearing on the petition as Solicitor General Tushar Mehta argued that the petitioner was “ambushing” and questioned the “source” behind the plea. The bench said it would “accommodate” the Centre and heard the senior counsel appearing for the petitioner, before listing the case for the government’s submissions on 12 July. On an affidavit filed by an undersecretary at the Prime Minister’s Office (PMO), who is discharging his functions in the PM Cares Trust on an honorary basis, the Centre has said the PM CARES Fund is not a government fund as donations to it do not go to the Consolidated Fund of India and no third-party information can be parted with, irrespective of its status under the Constitution and the Right to Information (RTI) Act. Appearing for the petitioner, senior advocate Shyam Divan argued that nobody can “contract out of law” for the creation of a fund that receives public donations and has senior ministers as its ex-officio members. The public has the right to know and the PM CARES fund must be governed by the principles of good governance, transparency and accountability, Divan said. “We do not know who is donating. Transparency is essential to constitutional fabric,” he added. Divan said even though the cause and purpose behind the fund is “laudable”, the law does not allow setting up a parallel entity that is outside the scope of the Comptroller and Auditor General (CAG). “Can you have the speaker of the house and some members creating a trust and saying please donate? Please assume that the cause is extremely laudable but does the Constitution allow you to set up something parallel and say this is not subject to any rigour of State and the CAG does not apply?” he asked. Divan further submitted that if the respondents contend that the PM CARES Fund is “State”, it cannot use the state emblem or use the official “gov.in” domain for its website. “Either you are State and submit to the rigours of the Constitution or do not publicise that you are State,” he said. “Can we, under the Constitution, allow these cosy arrangements? Not suggesting that any action is mala fide, but the structure is legally obnoxious,” the senior advocate submitted. The petitioner has 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. The petitioner has said the PM CARES Fund is a “State” as it was formed by the prime minister on 27 March, 2020 to extend assistance to the citizens of the country in the wake of a public health emergency – the COVID-19 pandemic – and if it is found otherwise, the usage of the domain name “gov”, the prime minister’s photograph, the state emblem etc. has to be stopped. The petitioner has said the trustees of the fund are the prime minister, the defence minister, the home minister and the finance minister, and immediately after the formation of the fund, the Centre, through its functionaries, represented that the fund was set up and operated by the Government of India. To ensure transparency and accountability, the plea has sought a direction for periodic auditing of the PM CARES website and a disclosure of the details of the donations received by it. In his alterative prayers, the petitioner has sought a direction to the Centre to publicise that the PM CARES Fund is not a fund of the Government of India and to restrain PM CARES from using “Prime Minister of India” or “Prime Minister”, including its abbreviations, in its name, on its website, the trust deed and other official or unofficial communications and advertisements. In its affidavit, the Centre has said the PM CARES trust functions with transparency and its funds are audited by an auditor – a chartered accountant drawn from the panel prepared by the CAG. It has vehemently contended that irrespective of the status of the Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) under the Constitution and the RTI Act, it is not permissible to disclose third-party information. It has said the trust receives all donations via online payments, cheques or demand drafts and the amount received is audited, with the audited report and the expenditure of the trust fund displayed on the website. The officer who filed the affidavit has also said he was discharging his functions in the PM CARES Trust on an honorary basis and it was a charitable trust, not created by or under the Constitution or by any law made by Parliament or a state legislature. Read all the Latest News , Trending News ,  Cricket News , Bollywood News , India News and Entertainment News here. Follow us on Facebook, Twitter and Instagram.