There has been huge outrage in newspapers and social media on a reply from the Prime minister's office to an RTI application filed by a person regarding PM CARES fund. The RTI reply states that PM CARES fund is not a public authority within section 2 (h) of the Right to Information Act, 2005. On the same line the other fund namely, PM NRF also is not considered a public authority under the RTI Act, 2005.

To understand this, First, we need to understand what these funds are and how they have been created and how they function.

PM NRF (Prime minister national relief fund)

The PM NRF was established by Prime minister Jawaharlal Nehru in 1948 to assist displaced persons from Pakistan. This fund now provides assistance to persons affected by calamities such as floods, earthquakes, and cyclones and to the victims of riots and accidents. The fund also covers to various degrees of medical expenses like heart surgeries, kidney transplants, cancer and acid attacks.

It is a trust consisting of the following committee:

1. Prime Minister
2. Deputy Prime Minister
3. President of the Indian National Congress
4. Finance Minister
5. A representative of the Tata Trustees
6. A member of industry and commerce decided by the Federation of Indian Chamber of Commerce

Since 1985 The fund has been functioning under the discretion and directions of the prime minister when the committee entrusted the entire fund to the prime minister.

PM CARES ( Prime Minister citizen assistance and relief in emergency situations)

This fund has been established by Prime Minister Narendra Modi. The PM Cares fund mentions that is available during a public health emergency, such as the ongoing COVID-19 pandemic, the up-gradation of pharmaceutical and healthcare facilities, funding research and during any other emergency and calamities.

The PM Cares has the following ex-officio members:

1. Prime Minister
2. Finance Minister
3. Minister of Home Affair
4. Minister of Defence

Further, the Prime Minister can nominate three experts to the committee of trustees.

Some of the similarities of both funds are:

1. Both are created as Charitable trust not to be used for Government purpose or government scheme
2. No budgetary support
3. Donation exempted Income Tax
4. Both funds do not accept contributions from public sector undertakings (PSUs) out of budgetary allocations.

Difference between the two funds:
1. The PM Cares fund states contributions made by companies and PSUs shall be considered CSR (corporate social responsibility) expenditure.

Now comes the main issue:
Why both PM NRF and PM CARES not considered as Public Authority Under section 2(h) of the Right to Information act,2005?

In 2012, A RTI activist, Aseem Takyar sought names and particulars of donors to the PM NRF and the beneficiaries of the PM NRF. The CPIO provided some of the information sought, the CPIO however invoked the exemption under section 8 (1) (j) of the RTI Act, as regards information related to amount, name, and particular of each recipient, beneficiary, and donor during the period.

The petitioner appealed to the CIC under section 19(3) of the RTI act, 2005. The CIC then passed a final order directing the CPIO to place the details of institutional donors of the PMNRF in the public domain and to disclose the information to the petitioner. Aggrieved by the order of CIC, The fund preferred the writ petition before Delhi high court.

The Learned single judge bench dismissed the appeal, But Single Judge refrained from giving a conclusive finding as to whether the appellant was a public authority. Aggrieved by the decision of the Learned Single Judge, the Appellant filed the appeal. The division bench of Delhi high court did not come to a conclusive decision regarding this as both judges had different opinions regarding PMNRF being a public authority.

S. Ravindra Bhat, J. was of the view that the Fund was a ‘public authority' within the Act. According to Justice Bhat, the directions given by the Prime Minister and other State functionaries as Managers of the fund cannot be deemed to be actions in a personal capacity. Those are deemed to be actions of the Government that the PM represents. Thus, PMNRF must be deemed to be a public authority under the Act.

On the other hand, Justice Sunil Gaur,. took a different view. According to him, the Fund does not owe its existence to the Government. It was a creation of the then PM in his ex-officio capacity. According to the learned Judge, PMNRF was neither constituted by Parliament nor is it managed by the government functionaries in their official capacity. he held that PMNRF is not a ‘public authority' under the RTI Act, and therefore the issue regarding the information sought to be in the public domain did not survive for consideration.

So the issue still lies before another Judge for consideration.

As far as the interpretation of section 2 (h) of the Right to information act goes:

Section 2 (h) public authority means any authority or body or institution of self-government established or constituted:

1. by or under the Constitution;
2. by any other law made by Parliament;
3. by any other law made by State Legislature;
4. by the notification issued or order made by the appropriate Government, and includes any:
   
   1. body owned, controlled or substantially financed;
   2. non‑Government Organization substantially financed, directly or indirectly by funds provided by the appropriate Government;

Interpreting section 2(h) of the RTI Act, PM NRF and PM CARES does not come under the purview of the public authority having said that I am of the opinion that the names of beneficiaries cannot be given out in respect of the privacy laws and to protect the person who is getting the benefit but the names of donors should be in the public domain as this trust gets funds from the public, the name of donors should be given out.

IN Army welfare housing organization vs Adjutant General's Branch and ors 2015, The Hon'ble Delhi court has clarified that certain government functionaries hold a position in his/her ex officio capacity ipso facto does not mean that the government is exercising control. Neither constituted by the parliament nor by government and it is not managed by the government functionaries in their official capacity.

An important thing that came out of the Aseem Takyar's case is that According to rule 47 of rules of procedure and conduct of business in Rajya sabha and rule 41 of rules of procedure and conduct of business in Lok sabha, no questions can be asked regarding the PM NRF trust.

An important question that is being asked by many people is Why PM NRF and PM CARES is not audited by CAG (Comptroller and auditor general), As both the funds are not part of any governments scheme or business of central government, therefore not subject to audit by CAG.

NOTE: In my view Government needs to bring some changes in both the funds, more transparency is required and especially in PM CARES should include some member from the opposition as a trustee of fund for transparency and they should give out the details of donors keeping in mind the privacy laws.