Plea in Delhi High Court to declare PM CARES Fund as "State" under Article 12 of Constitution

A plea to declare the Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM CARES) Fund a "State" under Article 12 of the Constitution of India will be heard by the Delhi High Court in April, when it will also take up a pending plea to declare PM CARES a "public authority" under the Right to Information (RTI) Act. Both petitions have been moved by Samyak Gangwal (Samyak Gangwal vs PMO, (Samyak Gangwal vs Union of India)..When the plea to declare PM Cares as 'State' came up before a Bench of Chief Justice DN Patel and Justice Jasmeet Singh on Tuesday, the Court expressed that it was not inclined to issue notice in the PIL. However, it proceeded to club the case with the plea to bring PM Cares under RTI and listed both matters for hearing on April 23. .The petitioner has contended that the PM CARES Fund is part of "State" under Article 12 of the Constitution of India in view of the following factors:It was formed by the Prime Minister of India in March 2020 to extend assistance to the citizens of India in the wake of the public health emergency of COVID-19; The Trustees of the PM CARES Fund are the Prime Minister, Defence Minister, Home Minister and the Finance Minister of India; Immediately after the formation of the PM CARES Fund, it was represented that the said Fund is set up and operated by the Government of India. The representations included Letters written by High Government Functionaries, Notifications/Office Memorandums issued by several ministries/departments, wherein it was clearly stated that the PM CARES Fund has been set up by the Government of India; These representations also included the use of government resources such as the use of ‘.gov.in’ domain name, State Emblem of India and the name ‘Prime Minister’ and its abbreviation on the PM CARES Fund website and in other official and unofficial communications;The official address of the PM CARES Fund was stated to be the Prime Minister's Office South Block, New Delhi- 110011;It was stated that secretarial assistance to the Fund shall be provided by the PMO Officials;The Government of India “deeply and pervasively” controls the fund, and also provides assistance to the fund by seeking donations on its behalf and, granting it various privileges, exemptions and benefits; PM CARES Fund has been established by the Government of India through the PMO;PM CARES Fund performs a public function which is similar to government functions;PM CARES Fund utilizes the privileges, benefits and exemptions which are reserved for State. .While so, the petitioner submits that huge donations amounting to Rs 3076.62 crores have been stated to be received by the PM CARES Fund between March 27-31, 2020 alone. It is noted further that IndiaSpend had reported that Rs 9677.9 corers is estimated to have been donated to the fund, of which Rs. 4308.3 crores was from government agencies (including staff salaries). .In this background, grievance has been raised over a paragraph in the Trust Deed issued on the PM CARES website, whereby it is stated that the PM CARES trust is not controlled by the government. "It is unimaginable that a Fund, (a) which has been set up by the Prime Minister of India, (b) where Trustees are the Prime Minister, Defence Minister, Home Minister and the Finance Minister of India, and (c) which has its office at Prime Minister's Office South Block, New Delhi-110011 has been declared to be a fund over which there is no Government Control", the petition states. .It is the petitioner's case that the Constitution of India does not envisage a situation where any member of the Executive occupying any public office can establish a Trust, which is represented as a Fund set up by the Government, but in fact does not have any Government Control whatsoever..The prayers made by the petitioner includeDeclare that the PM CARES Fund is ‘the State’ under Article 12 of the Constitution of India;PM CARES Fund be directed to disclose its audit reports on its website periodically;PM CARES Fund be directed disclose details on donations recieved every quarter, as well as the utilisation of these funds.PM CARES fund be directed to disclose quarterly, any resolutions on the expenditure of donations..In the alternative, the petitioner has urged the Court to direct that the Central Government To publicise that the PM CARES Fund is not a fund of the Government of India. To restrain PM CARES from using ‘Prime Minister of India’ and/or ‘Prime Minister’, including its abbreviations its name, on its website, Trust Deed and other official/ unofficial communications and advertisements;To restrain PM CARES Fund from using the Indian Emblem and from using 'gov.in' for its website and communications;To restrain PM CARES Fund from using the Prime Minister's address as its official address;To not extend the PMO's secretarial support to the PM CARES Fund.."The Petitioner believes that the reliefs sought in the Petition will ensure transparency and accountability in the Fund's functioning and will ensure that monies received by the PM CARES Fund are only used for the noble causes for which they were donated", the plea states..Senior Advocate Shyam Divan along with advocates Debopriyo Moulik, Ayush Shrivastava, Krishnesh Bapat and Govind Manoharan represented the petitioner. .The Supreme Court had, in August 2020, upheld the validity of the PM Cares Fund rejecting a plea seeking transfer of all monies collected in the PM Cares Fund till date to the National Disaster Response Fund (NDRF), a statutory fund created under the Disaster Management act of 2005..A three-judge bench of Justices Ashok Bhushan, R Subhash Reddy and MR Shah had held that establishment of PM Cares Fund was necessitated by the emergent situation borne out of Covid and requirement of financial resources to deal with the pandemic, and the court cannot object to the same..The top court had also said that existence of PM Cares Fund does not prohibit contributions to be made to NDRF and it is upto the concerned person or institution to decide whether to make a contribution to NDRF or PM Cares