by Anushka Kishwar
"If information and knowledge are central to democracy, they are the conditions for development." - Kofi Annan
INTRODUCTION
RIGHT TO INFORMATION
The expression “freedom of speech and expression” in Article 19(1) (a) has been held to indulge the right to receive information and circulate the same. This incorporates the right to transmit the information using any available platforms like print-media, electronic-media, audio-visual [advertisement, movie, article, or speech, and many more], etc. [1]
This freedom includes the freedom to communicate or circulate one’s opinion without interference to as large a population the country, as well as abroad, as is possible to reach.
In People’s Union for Civil Liberties [2], the Supreme Court dealt with this aspect of freedom elaborately. The right of the citizens to obtain information on matters relating to public acts floor from Fundamental Right enshrined in Art. 19 (1) (a). Acquiring and protecting information on the key details concerning the candidates challenging for election to Parliament or the Stet Legislature promotes freedom of expression and so the proper information forms an indispensable part of Article 19 (1) (a).
In Mr. Kulwal vs. Jaipur Municipal Corporation [3], the Supreme Court held that the right to information is dealt with under Article 19 (1) (a) i.e. Right to Freedom of Speech and Expression.
In the case of Prabhu Dutt vs. Union of India [4], the Supreme Court held that right to know news and information regarding the administration of the government is included in the freedom of the press.
The Right to Information Act, 2005 repeals the Freedom of Information Act 2000 which was passed by the previous NDA government. The purpose of the act is to promote forthrightness, transparency, and accountability in the administration
Since the right to information is a constituent of the freedom of expression under Article 19 (1) (a), the amended S.33- B of the Representation of People Act, 1951 which provides that-
“notwithstanding anything that contained in the judgment of any court or discretion issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information in respect of his election which is not required to be disclosed or furnished under the Act or the rules made thereunder, is on the face of it beyond the legislative competence, as the Supreme Court has held that the voter has a Fundamental Right under Article 19 (1) (a) to know the antecedents of a candidate and was, therefore, ultra vires Article 19 (1) (a).”[5]
The Supreme Court after observing the rise in demand regarding the share of information by the government to the public around the world held that ‘the right to information is a is a vital principle of the democracy.’[6]
This legislation entitles every citizen to have a piece of excess information controlled by public authorities. Public Authorities under Section 2 (h) states that- “any authority or body or institute of the self-government established or constituted- by or under Constitution; by any other law made by the Parliament; by any other law made by the State Legislature; and by the notification issued or order made by the appropriate government and includes any institute or body owned, controlled or substantially financed.” [non-government organization substantially financed, directly or indirectly by funds provided by the appropriate government.]
PM CARES [PRIME MINISTER’s CITIZEN ASSISTANCE & RELIEF IN EMERGENCY SITUATIONS] FUNDS
PM CARES Funds came into force on 27th March 2020 was set up to confront distress situations such as that of the migrant workers, up-gradation of healthcare facilities, developing vaccines, and more such as posed by the COVID-19 pandemic.
It is the public charitable trust, and Prime Minister Narendra Modi is the ex-officio chairman of the trust and the ex-officio trustees are Minister of Home Affairs (Amit Shah), Minister of Defence (Rajnath Singh), and Minister of Finance (Nirmala Sitharaman) as the ex-officio chairman of the trust has the power to appoint 3 trustees. The head office is in South Block, New Delhi-110011.
PM CARES trust will take decisions on allocation and selecting beneficiaries with the collective wisdom of ministers and nominated members. In one and a half months, the fund has racked up thousands of crores worth of donations including unlimited tax-free contributions from major corporations.
These emergency funds allow and accept voluntary contributions either by an individual or by an organization. The donations under this public charitable trust, have been exempted 100% by the Income Tax Act, can be counted against a company’s CSR in the Company Act, and can be audited by an independent auditor.
The picture seems clear, then what is it issue then, and why do some people have problem with it? Did we have any relief fund with similar objectives in India before PM CARES? For this, we need to understand PM NRF, challenges to PM CARES, and should PM CARES be a public authority? And most importantly should the PM CARES be transferred in PM NRF?
PMNRF
Prime Minister’s National Relief Fund or PMNRF was founded in 1948 by Prime Minister Pandit Jawaharlal Nehru and the president of the Indian National Congress was a member of managing the committee among others. And in 1985, the Rajiv Gandhi government gave complete control of PMNRF to PMO. The distribution of funds of this public charitable trust is by the approval of the Prime Minister. PMNRF deals with immediate relief to the families of- (1) natural calamities, (2) victims of major accidents and riots, (3) support medical expenses for acid attack victims, and (4) the others.
Since 1985, the decision to allocate money and select beneficiaries was done only at ‘discretion & on the recommendation of the Prime Minister. The accounts are not audited by the Comptroller and Auditor General of India.
CHALLENGES FACED BY PM CARES
➢ According to PMO (Prime Minister’s Office), “the fund for this public charitable trust is completely financed by donations received from individuals/conglomerate/CSRs [Corporate Social Responsibility]/ Foreign corporations and individuals/ PSUs, etc. Moreover, the funds are being supervised by the private individuals as trustees and not at all financed by the appropriate government, which is an important and mandatory condition to solicit section 2(h) of the Right to Information Act, 2005 and hence, it cannot be considered as a public authority.”[7]
➢ Several opposition leaders and eminent people have raised a question that since we have PMNRF, then why there is a need to establish PM CARES in the country?
➢ Another question has arisen regarding the transparency of the PM-CARES funds as according to section 2 (h) of the Right to Information Act, the public cannot get any information regarding the same.
➢ Does the main question arise that is PM CARES a public authority or not?
PMNRF VS PM CARES
The Supreme court in a 3-judge bench headed by Justice Ashok Bhushan, Justice R Subhash Reddy, and MR Shah held that “the funds collected in this way because of the voluntary contributions of different individuals and organizations, the government must do nothing with the funds collected in this so the Supreme Court cannot indulge in this without any sufficient cause. So, the Supreme Court said that they do not have the authority to transfer the funds to the national disaster relief fund. Both organizations have a different role, and the court cannot do such things.”
PM CARES cannot be transferred to PMNRF as both the trust have different objectives as One of them is dedicated to confronting distress situations such as that of the migrant workers, up-gradation of healthcare facilities, developing vaccines, and more such as posed by the COVID19 pandemic and while other is dedicated to immediately relief to the families of- (1) natural calamities, (2) victims of major accidents and riots, (3) support medical expenses for acid attack victims, and (4) the others. Moreover, PMNRF fund money is used to fight against natural calamities but in the case of PM CARES no government money is financed, as the funds are being donated voluntarily either by individuals or the corporates.
PM CARES funds cannot come under the scope of public authority because as it is clearly shown that funds are not created by the constitution, and it is not made by the parliament and most importantly not funded by the government.[8]
If any person is holding any position in his ex-officio capacity, it does not mean that the government is exercising its control over the function of that organization. In other words, it doesn't mean that the person holding any position in a body or institute it's created by the government or the parliament merely on this ground.[9]
CONCLUSION
The motive behind the formation of PM CARES funds is for a good cause. Although they are many different funds in the country, the government cannot use those funds the way they like as they must follow the rules and regulations and the procedures in each step. Due to this, the government faces difficulty to get permission to use those funds during emergencies.
PM CARES is created to tackle any kind of circumstances and emergencies and post emergencies effect. In this fund, the donations can be funded by anyone voluntarily and the money is used for any kind of such situation. The only thing is it required that there is a need for transparency in the PM CARES funds.
REFERENCE
1. Scroll.in, PM-CARES ‘controlled by the government’, but doesn’t come under RTI Act, says Centre in new response https://scroll.in/latest/982310/pm-cares-controlled-bygovernment-but-doesnt-come-under-rti-act-says-centre-in-new-response (Last Visited on 27th September 2021 at 4:45 pm)
2. Was it right for the PMO to reject RTI on PM Cares Fund? https://blog.ipleaders.in/rightpmo-reject-rti-pm-cares-fund/ (Last visited on 27th September 2021 at 4:45 pm)
3. Hindustan Times, SC rejects plea seeking fund transfer from PM Cares to NDRF https://www.hindustantimes.com/india-news/sc-rejects-plea-seeking-transfer-of-funds-frompm-cares-to-ndrf/story-zZwPlSFbEwHxsr2xmzB1LN.html (Last visited on 27th September 2021 at 4:45 pm)
FOOTNOTES
[1] 7th Edition, MP Jain, Indian Constitutional Law, pg. 1022
[2] PUCL vs. UOI, (2003) 4 SCC 399
[3] AIR 1988 Raj 2, 1987 (1) WLN 134
[4] AIR 1982 SC 6. See Sheela Barse vs. the State of Maharashtra, (1997) 4 SCC 373
[5] PUCL vs. UOI, (2003), 4 SCC 399
[6] S.P. Gupta vs. UOI, AIR 1982 SC 149, 1981 Supp (1)
[7] Scroll.in, PM-CARES ‘controlled by the government’, but doesn’t come under RTI Act, says Centre in new response https://scroll.in/latest/982310/pm-cares-controlled-by-government-but-doesnt-come-under-rti-act-says-centre-innew-response (Last Visited on 27th October 2021 at 4:45 pm)
[8] National Stock Exchange of India Limited vs. Central Information Commission, 2010
[9] Army welfare housing organization vs Adjutant General’s Branch and others, 2014