‘Govt doesn’t have power to create a Trust’: Plea in Allahabad HC says PM CARES Fund unconstitutional

A PIL has been filed before the Allahabad High Court, challenging the constitutional validity of the PM National Relief Fund and the PM CARES Fund, legal news website LiveLaw.in has reported.

The petition has been filed by two practicing advocates of the High Court, Divya Pal Singh and Anubhav Singh, stating that the PMNRF and PM CARES are unconstitutional and void, for not being backed by any law and for being at odds with the National Disaster Response Fund (NDRF), which was constituted by the Central Government under Section 46 of the Disaster Management Act, 2005 (DMA).

They have thus sought that the money/ funds contained in the PMNRF and PM CARES Fund be transferred/ credited to the NDRF.

The petitioners have submitted that the government does not have the power to create a Trust, otherwise than by an authority of law, as per Entry 10 of the Concurrent List under the Seventh Schedule of the Constitution.

"Manifestly, the constitutional mandate for creating a trust by making a law is an implicit, mandatory and binding prohibition on the power of the Central Government or Prime Minister to create a non-statutory express trust (PM CARES Fund), opaque in nature, to collect money from institutions and public generally during outbreak of disaster (the COVID-19), while, there is a statutory fund, already in place (NDRF) for the same purpose constituted by the Central Govt. under 2005 Act," the plea states.

It is also contended that the NDRF would prevail over the PM CARES Fund, in terms of Section 72 of the DMA, which stipulates that the Act has an overriding effect and prevails, notwithstanding anything inconsistent therewith, over every instrument or law for the time being in force.

The petitioners assert that the NDRF is audited by the CAG and is subject to the Right to Information Act, and it is therefore more transparent when compared to the PM CARES Fund.

"The NDRF is audited by the Comptroller and Auditor General of India (CAG); its abuse, misappropriation and misuse is an offence and punishable under the 2005 Act. What is more, the same is transparent, subject to annual report (giving accounts of its activities) to be tabled in the Parliament, and the Right to Information (RTI) Act, 2005 and thus fully under the public scanner, while the trust affairs, supra, do not qualify such rigour or statutory obligations. They are opaque, undemocratic, beyond the purview of RTI Act, non-auditable by the CAG and wholly beyond the public reach and scanner."

The petitioners therefore seek as an alternative prayer that the accounts of the PM CARES Fund be directly audited by the CAG and, full accounts, activities and expenditure details, along with the Trust Deed of the PM CARES Fund be made public, desirably by publishing the said details (to be updated regularly) on the government website.