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, the Delhi High Court was informed on Tuesday.

An affidavit filed by an under secretary at the Prime Minister’s Office (PMO), who is discharging his functions in the PM Cares Trust on honorary basis, has said the trust functions with transparency and its funds are audited by an auditor -- a chartered accountant drawn from the panel prepared by the Comptroller and Auditor General of India.

It contended that irrespective of the status of 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.

The affidavit was filed in response to a petition seeking a direction to declare the PM CARES Fund a 'State' under the Constitution to ensure transparency in its functioning.

The same petitioner has also filed another petition to declare PM CARES as a "public authority" under the RTI Act, which is being heard together with this plea.

A bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad heard the arguments advanced on behalf of petitioner Samyak Gangwal and asked the office of Solicitor General Tushar Mehta to inform the court about his availability to argue the case.

The affidavit filed by Pradeep Kumar Srivastava, Under Secretary at the PMO, said the prayers made in the present petition are not maintainable as PM CARES does not constitute a "public authority" under the provisions of RTI Act.

“I reiterate and submit that the PM CARES Fund has been set up as a Public Charitable Trust. This Trust is not created by or under the Constitution of India or by any law made by the Parliament or by any State Legislature.

“This Trust is neither intended to be or is in fact owned, controlled or substantially financed by any government nor any instrumentality of the government. There is no control of either the Central government or any state government/s, either direct or indirect, in functioning of the Trust in any manner whatsoever,” the official said.

The affidavit added that the composition of the Board of Trustees consisting of holders of 'Public Office ex-Officio' is merely for administrative convenience and for smooth succession to the Trusteeship.

It said PM CARES is not a “public authority” within the meaning of Section 2(h)(d) of the RTI Act and as such provisions of the Act cannot be made applicable on the trust and added that on this preliminary issue the petition deserves to be dismissed.

“The PM CARES accepts only voluntary donations by individuals and institutions. Contributions flowing out of budgetary sources of government or from the balance sheets of the public sector undertakings are not accepted. Conditional contributions, where the donor specifically mentions that the amount is meant for a particular purpose, are not accepted in the Fund,” it said.

The affidavit further said that the cause for which PM CARES Fund was created and exists is purely charitable and neither the funds of this trust are used for the government projects nor is the trust governed by any of the government policies, so it cannot be labelled as "public authority".

It said PM CARES does not get any budgetary support from the Consolidated Fund of India and the assumptions of the petitioner regarding arbitrariness or non-transparency are devoid of merit.

“The benefit of the objects of the Trust have been made available to the general public irrespective of caste, creed, sex, region, language and religion. Moreover, Trust Deed of the PM CARES Fund along with grants sanctioned from the fund are available in public domain on the website pmcares.gov.in. Audit reports of the PM CARES Fund are already available on the website…,” it said.

The affidavit also raised objection over locus standi of the petitioner to file the petition and said he has taken upon himself to espouse a cause which is intended to be created in a manner which ex-facie is guided by an ulterior motive to find his place in the public eye.

“The present case is a classic case of a busy body attempting to gain publicity under the garb of public interest litigation,” it said, adding that the plea was preferred with oblique motives and it be dismissed with exemplary costs.

It also said that the petition has attracted a lot of traction in the media houses via online reporting and through other means, which seems to be the end goal of the petition, that is, to agitate a publicity interest litigation in the garb of public interest litigation.

“It will not be out of place to state that the petitioner being proxy is a means for unscrupulous hands to further their personal causes,” the affidavit said.

It further said that the petition has been preferred in vacuum, by way of clever drafting, attempts to espouse and agitate a cause of “certain groups with vested interest for extraneous reasons”.

“I state that when the petitioner is claiming to be a public-spirited person and seeking to pray for various reliefs only for transparency, it does not matter whether PM CARES is a ‘State’ within the meaning of Article 12 of the Constitution of India,” the officer said in the affidavit.

It said that all donations received by the trust are received 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 Trust functions on the principles of transparency and public good in larger public interest like any other charitable trust and, therefore, cannot have any objection in uploading all its resolutions on its website to ensure transparency,” it said, while reiterating that “the trust’s fund is not a fund of Government of India and the amount does not go in the Consolidated Fund of India.” The officer said he is discharging his functions in the PM CARES Trust on an honorary basis which is a charitable trust not created by or under the Constitution or by any law made by the Parliament or by any state legislature.

In his plea, petitioner Gangwal has said that the PM CARES Fund is a 'State' as it was formed by the prime minister on March 27, 2020 to extend assistance to the citizens of India in the wake of the public health emergency -- the ongoing COVID-19 pandemic.

His counsel told the court that if it is found that the PM CARES Fund is not 'State' under the Constitution, usage of the domain name 'gov', the prime minister's photograph, state emblem, etc has to be stopped.

The petition said that the trustees of the fund are the prime minister, defence minister, home minister and finance minister and immediately after the formation of the fund, the Centre through its high government 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 PM CARES website and disclosure of the details of donations received by it.

In his alterative prayers, Gangwal has sought to direct 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 and name, on its website, Trust Deed and other official or unofficial communications and advertisements.

The petition challenges a June 2, 2020 order of the Central Public Information Officer (CPIO), PMO, refusing to provide documents sought by him on the ground that PM CARES Fund is not a public authority under the RTI Act.

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