Introduction
On March 28, 2020, the Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES) was established by the honourable Prime Minister of the country. Since its inception, it has received tremendous public support, and collected over Rs 6500 crores in just one week. However, it has also been a constant subject of the numerous controversies (Favouritism, No Audit by CAG, Compulsory ‘Voluntary’ Donations, Need of its Creation, etc.) and public interest litigations in the High Courts and the Supreme Court of India.
Recently the Prime Minister’s Office rejected an RTI application filed regarding the PM CARES Fund by an LLM student on the grounds that “PM CARES Fund is not a public authority under the ambit of Section 2(h) of the Right to Information Act, 2005”. However, this was not the first RTI application involving PM CARES Fund to be rejected; several other RTI applications have either been rejected or have not received any response even after the statutory mandated 30-day period. In the view of the author, such a decision of the Prime Minister’s office is wrong. It gravely compromises the principle of informed citizenry and transparency in the functioning of the Government.
Meaning of Public Authority
The term ‘Public Authority’ has been defined under Section 2(h) of the Right to Information Act, 2005 as
“Public Authority means any authority or body or institution of self-government established or constituted:
- By or under the Constitution,
- By any other law made by Parliament
- By any other law made by State Legislature;
- By notification issued or order made by the appropriate Government
It also includes any:
- Body owned, controlled or substantially financed;
- Non-Government Organisation substantially financed.”
Through a number of decisions of the High Courts, including a 2010 judgment of the Delhi High Court in the case of the Delhi Sikh Gurudwara Management Committee v. Mohinder Singh Matharu, Section 2(h) has been given a broad interpretation and has been divided into two independent parts, while falling under either of the parts sufficient to constitute a body as Public Authority under the Act.
The first part provides that public authority means any authority or body or institution of self-government established or constituted by or under the Constitution[Section 2(h)(a)], by any enactment made by the Parliament[Section 2(h)(b)] or the State Legislature[Section 2(h)(c)] or by a notification issued or order made by the appropriate Government[Section 2(h)(d)]. The second part provides public authority to be a body owned, controlled, or substantially financed by the appropriate Government[Section 2(h)(d)(i)] or the Non-Governmental organisations substantially financed by the Appropriate Government. [Section 2(h)(d)(ii)]
Notification Issued or Order Made by the Government
A simple evaluation of PM CARES Fund reveals that it is not a body or institution formed under the Constitution or enacted by the Parliament or the State Legislative Assembly; therefore, PM CARES Fund is not a public authority as prescribed under Clauses (a) to (c) in the first part of the definition. What needs to be considered is whether PM CARES Fund satisfies that it has been established “by a notification issued or order made by the appropriate Government.” However, while interpreting these words, the observation of the Delhi High Court in Bhagat Singh vs. Chief Information Commissioner has to be kept in the mind. The Court observed that the rights-based enactments like Right to Information Act is akin to a welfare measure and therefore should to be interpreted liberally and not literally.
The PM CARES Fund was established after a detailed press release note on the March 28, 2020 by the Prime Minister’s Office. More importantly the official notification of the Ministry of the Corporate Affairs regarding PM CARES Fund itself provided “The Government of the India has set up the Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund)”.Satisfying the condition that PM CARES Fund has been established by a notification issued or order made by the appropriate Government
Control by the Government
For the sake of argument, even if it is assumed that PM CARES Fund was not established by the notification issued or order made by the appropriate Government, recourse can be made to the second part of Section 2(h). It has to be established that PM CARES Fund is a “body owned, controlled or substantially financed” by the Government.
It is pertinent to note that the three conditions mentioned here are not cumulative but distinct; hence even if one of the three conditions mentioned is satisfied, it would be sufficient to constitute the body that has public authority. The Delhi High Court held the same in the National Stock Exchange of India Limited v. Central Information Commission. Prima facie, it is clear that PM CARES Fund is a Public Trust, contribution to which is only made by the public and not in any manner, it is an ownership of the Government. So, the only parameter it needs to fulfil is that the appropriate Government controls it. In Thalappalam Service Coop. Bank Ltd v. The State of Kerala, while analysing the degree of control of the Government on a body, Supreme Court made a very relevant observation that “the control of the body by the appropriate Government has to be substantial and not merely supervisory or regulatory.”
The Prime Minister is the Chairperson of the Board of the trustees of the PM CARES Fund with Minister of Defence, Minister of Home Affairs, and Minister of Finance as trustees of the fund. Further, the Prime Ministers, as its Chairperson has the power to nominate three other eminent persons from the field of research, health, law, etc. as the other trustees to the board. The board of trustees has full discretion in the disbursement of the fund. Such a degree of power and control indicates that the Union Executive has substantial control over the management and in affairs of the fund, and in no way, such a control can be termed as merely supervisory.
Right to Privacy vs. Right to Information
In 2018, a similar issue was raised before the two-judge bench of Delhi High Court, with respect to the Prime Minister’s National Relief Fund (PMNRF) as to whether the PMNRF falls under the definition of Public Authority under the Right to Information Act. In this case, it was argued from the side of the Government that information related to the beneficiaries of the fund is exempted under Section 8(1) (j) of the Act. Section 8(1)(j) provides an exemption from disclosure of information which does not have any relation to the public interest.
In the Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi & Anr, the Supreme Court while interpreting the term ‘Public Interest’ mentioned in Section 8(1)(j) observed that the term public interest is incapable of giving a precise definition, however its meaning has to be constructed while keeping in mind the balance between the right to information and the right to privacy. In the opinion of the author in the present case, the balance tilts in favour of the right of citizens to know about the fund to which they have contributed. Disclosing the expenditure made out of the corpus will ensure that funds are properly utilised, i.e., dealing with any kind of emergency or unexpected situation, like the one posed by the COVID-19 pandemic. It also prevents government officials from misappropriating funds for personal uses.
With regard to privacy concerns, the observation of Supreme Court in the case of R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 is very significant; the Court stated that although the right to privacy is implicit under the right to life and liberty guaranteed in Article 21 of the Constitution, once a matter becomes public record, the right to privacy no longer subsists. In the present case, the honourable Prime Minister is the Chairperson of the Board of the Trust and has exclusive right to decide the manner in which fund has to be utilised, and as soon as he chooses the recipients to whom the fund has been distributed, the confidential relation ceases to exist and becomes a matter of public record. Moreover, already states like Odisha, Rajasthan, etc. while recognizing the broader ‘public interest’ are providing information related to the beneficiaries of their own Chief Ministers’ Relief fund.
Conclusion
Based on the aforementioned arguments, the author would like to state that in his view, the PM CARES Fund falls under the ambit of the term ‘Public Authority,’ as defined under the Right to Information Act, 2005. Firstly, the PM CARES Fund satisfies the condition of being established by a notification issued or order made by the appropriate Government under section 2(h)(d) of the Act and secondly, it satisfies the condition of being controlled by Government under Section 2(h)(d)(i) of the Act. There is an urgent need for that Prime Minister’s Office to review its decisions and allow the RTI applications filed regarding PM CARES Fund. A transparent, open, and accountable system is the need of the hour, and RTI is one of the most powerful instruments in the hands of the citizens for ensuring it.
This article has been written by Sarthak Gupta, an undergraduate student at Institute of Law, Nirma University, Ahemdabad
Constitutional Law Society, NUJS 