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"Sunlight is the best disinfectant", United States Supreme Court judge, Justice Louis Brandeis said in respect of open government. Judges of the Supreme Court of India have cited the quote to advocate transparent and accountable governance.
In contrast to the judges of the Supreme Court, the PM Cares Fund prefers darkness over sunlight. Recently, the Prime Minister's Office refused to disclose information relating to the PM Cares Fund by stating it does not fall under the definition of public authority under the Right to Information (RTI) Act, 2005.
Under the RTI Act, a public authority is mandated to provide information in response to an RTI application. Section 2(h) of the Act defines what constitutes “public authority”. The definition consists of two parts. The former part provides that a public authority includes
a) body established by the Constitution,
b) body established by any law made by the Parliament,
c) body established by law made by the State Legislature, and
The latter parts covers bodies established by a notification or order issued by the government and includes:
i) a body owned, controlled or substantially financed by funds provided by the government and;
ii) non-governmental organisations substantially financed by funds provided by the government.
The PM Cares Fund does not fall within the definition under category a, b, c and ii, because it has not been constituted under the Constitution or by Parliament. We are left with two categories - body owned, controlled or substantially financed by the government; and body created under notification or order issued by government.
Before moving ahead, the decision of Delhi High Court in National Stock Exchange of India Limited v. Central Information Commission 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.
I argue that the PM Cares Fund falls under the definition of public authority because the government exercises substantial control over the Fund. However, it may not be a public authority on the ground that it is owned or substantially financed by the government or created under notification/order issued by the government.
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 Kerala, 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 (explained in later part under liberal interpretation).
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:
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.
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.
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.
Advertisements seeking contributions to the PM Cares Fund have been made by government agencies from their budgetary allocation.
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.
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.
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 Case, 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.
Substantially financed or owned by the appropriate government
In DAV College Trust v. Director of Public Instruction, the Supreme Court relying upon Thalappalam, 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.
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. CIC has brilliantly noted the underlying idea behind the RTI Act.
“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.”
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 author is a student at Ram Manohar Lohia National Law University, Lucknow.