Supreme Court order on PM CARES, blow to accountability

The judgment of the Supreme Court regarding 'PM CARES Fund' inflicts a serious blow to the accountability of institutions carrying out public activities. The public nature of the charitable trust and enormous tax reliefs granted to it was ignored by the apex court. It is unfortunate. It might embolden every State government also come up with such funds which are not accountable.

BJP executive president Nadda commented that this judgment was a blow to Rahul Gandhi and his Congress party. The Union government has totally ignored the statute-provided trust - National Disaster Response Fund, (NDRF) under National Disaster Management Act, 2005, with sufficient provisions of accountability and auditing. It has created another 'fund' without any strict provision for 'accountability'. This fund has the validation by the Supreme Court which surely not conducive for good governance.

The Bench of SC has completely agreed with the stand of the government that (a) PM-CARES was a "public charitable trust" to which "anyone can contribute", that (b) it is a "misconception" that contributions received by a public trust such as PM-CARES could be transferred to a statutory fund such as the NDRF, (c) the existence of PM-CARES fund to receive "voluntary donations" as an entity separate and distinct from the NDRF.

The SC appears to have adopted technical interpretation keeping aside the duties of 'trust' and trustee of PM CARES fund, i.e., the PMO, to which thousands of crores of rupees are pouring in.

Because the PM CARES Fund is not officially a Union government fund, though it really is, the CAG does not have any constitutional obligation to audit this 'fund'. It is obvious that by adopting this route, carefully the 'hurdle' of compulsory auditing is avoided.

Three-judge Bench of the Supreme Court on 18th August 2020 also felt that funds received into the PM-CARES Fund need not be credited to the National Disaster Response Fund (NDRF). But Covid-19 pandemic is a disaster, whole law is set to deal with the disaster. The governments are using this law to assume powers and impose penalties for defiance of guidelines or instructions to tackle the disaster, but when it comes to accountability, it is not considered. Creating another Fund devoid of accountability, when a comprehensive law is already in place to manage such fund, comes under severe criticism.

Incidentally, this PIL was also filed by Centre for Public Interest Litigation represented by Prashant Bhushan who is facing sentence for his tweet about how the SC judgments were silent when the executive was destroying the democratic institutions. Compared to NDRF, the PM CARES Fund is free from accountability, presence of member from Opposition party and by its practice 'transparency' also. The SC ignored the points raised by two senior advocates. One - Dushyant Dave pointed out that PM-CARES was not subject to audit by the Comptroller and Auditor General. It was not under "public scrutiny" and contributions to it were "100 % tax free". Two - Kapil Sibal argued that corporate contributors were lured to donate to PM-CARES because they could avail of corporate social responsibility benefits, which was not possible in the case of donations to States' funds.

The SC is right, there is no statutory prohibition on individuals to make voluntary contributions to NDRF under Section 46(1)(b) of the Disaster Management Act of 2005. Question is not about presence or absence of prohibition; it is about statutory norms of accountability. If PM CARES within itself should have provisions for audit, accountability, and transparency. Simply because of name being different, the fund should remain unaccountable or what? Shyamlal Yadav, an RTI activist journalist of The Indian Express has sent RTI queries to 55 PSUs and received, and until August 13, responses from 38, which showed that they contributed a total of Rs 2,105.38 crore over the past five months from budget allocations in 2019-2020 and 2020-2021. Many organisations donated huge amounts even before the budget is finalised. Some gave more than what was allocated under Corporate Social Responsibility funds.

This fund had a corpus of Rs 3,076.62 crore on March 31, 2020, of which Rs 3,075.85 crore was listed as "voluntary contributions", according to its official website.

Section 4(1)(c) of RTI Act mandates PMO to "publish all relevant facts while formulating important policies or announcing the decisions which affect public". People including petitioner can legitimately expect that PMO could have been directed to disclose these details periodically on its own on the official website. It was disappointing that it was not done.

Both the 'PM Cares Fund' the 'PMO', which manages, controls, and allocates from that Fund are the 'public authorities' as per RTI Act. It is not disputed that PMO is already under the purview of RTI Act. The PMO has complete control over the PM CARES Fund. It cannot escape saying it is not public authority.

Perhaps realising this, the PMO responded to Lokesh Batra (retd Commodore) differently. It said the information sought would disproportionately divert the resources, without claiming that it was not public authority. Lokesh Batra asked for the total number of RTI applications and appeals received and disposed of in the PMO each month since April 2020, as well as the number of such applications and appeals related to PM-CARES and the Prime Minister's National Relief Fund. The CPIO of Prime Minister's Office (PMO) denied saying: "The information sought by you is not maintained in this office in compiled form. Its collection and compilation would disproportionately divert the resources of this office from the efficient discharge of its normal functions, thereby attracting the provisions under Section 7(9) of the Act". Section 7(9), on the other hand, only says, "An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question."

If it is difficult to give information in the form sought, the public authority could give it in available form. But information cannot be denied. Kerala High Court clarified in 2010 that this provision, does not even confer any discretion on a public authority to withhold information, let alone any exemption from disclosure, it only gives discretion to the public authority to provide the information in a form other than the form in which the information is sought for." Thus, this is a clear case of abuse and factually a false statement.

If some individual or an Indian corporate or Chinese corporate that has donated thousands of crores of rupees to this PM CARES Fund, why it should not be known to the people, who are supposed to be ultimate beneficiaries during this pandemic? Why a citizen cannot ask under RTI, "Who are the donors who gave Rs 3,076 crore in the first five days in March 2020? Do they include Chinese firms? What is the amount received since April 1, 2020 and who are the donors? How these funds are allocated? Who will allocate? If a proposal requires funding immediately from PM CARES Fund is rejected, why it is rejected? How the amount is spent so far for Covid-19 pandemic and what is the relief they could achieve? The accountability mechanism and access to information system legally incorporated under RTI are democratic requirements, should not be weakened if rulers are sincere about giving corruption-free government.

(The writer is Dean, School of Law, Bennett University, and former Central Information Commissioner)