PM CARES not a ‘public authority’ under RTI Act, PMO tells applicant in a one line response

Stating that PM CARES FUNDS is not a 'public authority' under Section 2(h) of the Right to Information Act, 2005, the Prime Minister's Office (PMO) has refused to divulge information sought in an application filed under the RTI Act, LiveLaw.in reported.

The RTI application was made by one Harsha Kandukuri on April 1, seeking information regarding the constitution of the Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund).

Harsha, a student of LLM in Azim Premji University at Bengaluru, sought the copies of the trust deed of PM Cares Fund, and all Government Orders, Notifications and Circulars relating to its creation and operation.

Disposing of the application on May 29, the Public Information Officer of PMO said: "PM CARES Fund is not a public authority under the ambit of Section 2(h) of the RTI Act, 2005. However, relevant information in respect of PM CARES Fund may be seen on the website pmcares.gov.in".

The copies of the trust deed, and the government orders/notifications relating to the PM CARES Fund are not seen uploaded in the official website of the fund.

What is 'public authority' under RTI?

As per Section 2(h) of the RTI Act, "public authority" means any authority or body or institution of self-government established or constituted,—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government.

The definition of 'public authority' also includes bodies owned, controlled or substantially financed by the government and non-governmental organizations substantially financed, directly or indirectly by funds provided by the appropriate government.

Harsha has been quoted as saying that he will be filing statutory appeal against this decision of PMO.

"By denying PM CARES fund the status of 'public authority', it is only reasonable to infer that it is not controlled by the government. If that is the case, who is controlling it? The name, composition of the trust, control, usage of emblem, government domain name everything signifies that it is a public authority. By simply ruling that it's not a public authority and denying the application of RTI Act, the government has constructed walls of secrecy around it. This is not just about lack of transparency and denying the application of the RTI Act to the fund, we should also be worried about how the fund is being operated. We do not know about the decision making process of the trust and safeguards available, so that the fund is not misused. For a trust which is created and run by 4 cabinet ministers in their ex-officio capacities, denying the status of 'public authority' is a big blow to transparency and not to mention our democratic values," he said.

Earlier instance of PMO refusing information on PM CARES Fund

Earlier, on April 27, the PMO had refused to share details of the fund in an RTI application filed by one Vikrant Tongad, saying, "It is not open to the applicant under the RTI Act to bundle a series of requests into one application unless these requests are treated separately and paid for accordingly".

In that instance, the applicant had sought information on 12 points from the PMO regarding the fund.

The PM CARES Fund was created on 28 March 2020, "with the primary objective of dealing with any kind of emergency or distress situation, like posed by the COVID-19 pandemic".

The Prime Minister is the ex-officio Chairman of the PM CARES Fund and Minister of Defence, Minister of Home Affairs and Minister of Finance, Government of India are ex-officio Trustees of the Fund.

Following the creation of the fund, Opposition members raised many queries as to why a separate fund was needed when the Prime Minister's National Relief Fund was already there.

The Supreme Court had dismissed two Public Interest Litigations (PIL) filed questioning the legality of the constitution of PM CARES Fund by saying that the petitions were misconceived and as having a political colour.

It is also not clear if the PM CARES Fund can be subjected to audit by the Comptroller and Auditor General of India.

A news report by NDTV, quoting sources at the CAG office, said, "Since the fund is based on donations of individuals and organisations, we have no right to audit the charitable organisation".

Reacting to the news, Senior Advocate Prashant Bhushan posted on Twitter:

PM CARES Fund Not A 'Public Authority' Under RTI Act, Says PMO! So 1000s of Crores have been collected for a private fund of Mr Modi, from Govt servants, PSUs private corporations and people?

Many others too took to Twitter to post messages expressing dismay and angst over the development:

This legal angle have to be looked at. Private company can donate money to anything. But are govt institutions allowed to spend public money into something that is not public, beyond RTI, and would not be audited by CAG? Seems like illegal to me

No surprise. That fund is meant to mop up money at a time when public sympathy is high, which the GoI and party can then use for whatever reason without fear of oversight.

This is absurd. Under Section 2(h)(d) of RTI Act, an authority constituted by an order of Govt is a 'public authority'. Does the PMO mean to say that PM CARES is not created by govt? Then it's highly problematic

Fakeer aadmi's private jhola you all! Tum bharo, woh le kar chal denge

Accountability and all is so anti national anyway!

Then can we call #PMCaresFund as #PMDontCareFund & he can use it as per his wish ! He can use this public money to buy MLAs from Maharashtra to form the Govt there ! He can use this fund for advertisement of #1YearofModi2 in leading newspapers in the form of " Open Letters".

...so does it mean that all those who generously donated to #PMCaresFund have no right to ask how their funds got utilized under RTI ?

So, is it under "private authority"? If it's not a public authority then that means the govt doesn't control it. So who is controlling it? Why so much secrecy about this fund?

You can not ask government for PMCare Fund disclosure. The #PMCaresFunds is Mahaghotala (Corruption) itself.