‘PM CARES not created under Constitution’

Our Bureau New Delhi | Updated on September 24, 2021

Prime Minister Narendra Modi   -  PTI

PMO tells Delhi HC the Fund does not qualify to be “State” and is exempt from RTI

An Under Secretary in the Prime Minister’s Office (PMO) informed the Delhi High Court on Thursday that the PM CARES Fund Trust is not created by or under the Constitution or any other law and the amount received by it does not go into the Consolidated Fund of India.

The officer, in an affidavit, said he was deployed with the PM CARES Fund on an “honorary” basis and the Fund does not qualify to the definition of the “State” under Article 12 and as such, is not subject to scrutiny under the Right to Information Act.

“I state and submit that irrespective of whether the Trust is a “State” or other authority within the meaning of Article 12 of the Constitution of India and or whether it is a “public authority” within the meaning of section 2[h] of Right to Information Act, Section 8 in general and that of provisions contained in sub section [e] and [j], in particular, of the Right to Information Act, it is not permissible to disclose third party information,” Pradeep Kumar Srivastava, Under Secretary, PMO told the Court.

‘Honorary basis’

“I submit that I am discharging my functions in the PM Cares Trust on honorary basis which is a charitable Trust not created by or under the Constitution of India or by any law made by the Parliament or by any State legislature. Despite being an officer of the Central Government, I am permitted to discharge my functions in PM Care Trust on an honorary basis,” he said.

In his rejoinder affidavit, the petitioner Samyak Gangwal through advocates Debopriyo Moulik, Ayush Shrivastava and Krishnesh Bapat argued that the Under Secretary has filed contradictory averments.

“It may be noted that Pradeep Kumar Srivastava, the Deponent, claims to be the Under Secretary in the PMO and as such states that he is competent to swear the said affidavit in his “official capacity”. An officer of the Government filing the reply affidavit in his “official capacity” demonstrates the pervasive control Union of India exercises on the PM CARES Fund... Furthermore the Deponent’s submissions are contradictory. If the Deponent is performing this role on an honorary basis, the affidavit cannot be in his official capacity,” said the petitioner.

The petitioner contradicted the affidavit on whether PM CARES is a fund of the Government.

‘Pervasive control’

“Government deeply and pervasively controls the PM CARES Fund, and also provides assistance to the fund by seeking donations on its behalf and granting it various privileges, exemptions and benefits. The Board of Trustees of the PM Cares Fund includes the Prime Minister of India (Chairperson) (ex-officio), Minister of Defence (ex-officio), Minister of Home Affairs (ex-officio), and Minister of Finance (ex-officio). The Hon’ble Prime Minister of India executed a Trust Deed to set up the PM Cares Fund, and he is the settlor of the said trust deed. The Fund has been established by the Government of India through the PMO. The PMO provides the administrative and secretarial support to the Board of Trustees for the management and administration of the Trust. The Fund is using the domain name ‘gov.in’ for its website, its email address, communications, correspondence, advertisements, etc. The Fund is using the State Emblem of India and the word ‘Prime Minister’ in its nomenclature as reflected on its website, its official communications, email address, communications, correspondence, advertisements, etc. It Performs a public function which is related to Government functions and the Fund utilises the privileges, benefits and exemptions which are reserved for State,” said the petitioner furnishing documents to support all the claims.

Published on September 23, 2021

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