New Delhi: The Delhi high court on Tuesday, July 12, noted its displeasure at only a one-page affidavit being filed on the PM-CARES Fund in a case seeking for the fund to be declared as ‘state’ under Article 12 of the constitution, and directed the Union government to file a detailed response within four weeks.
A bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad questioned the government for submitting only a one-page affidavit on “such an important issue”; as well as the fact that only the fund itself has submitted a response while the Union government has remained silent in the case.
Further, the bench slammed the affidavit for failing to include any of the arguments made by the counsel for the petitioner – advocate Shyam Divan.
The bench was hearing a public interest litigation (PIL) filed by Samyak Gangwal seeking for the Prime Minister Citizen Assistance and Relief in Emergency Situation Fund (PM-CARES Fund) to be declared as ‘state’ under Article 12 of the constitution.
Article 12 of the constitution says that the ‘State’ includes, “the government and parliament of India and the government and legislature of each of the states and all local or other authorities within the territory of India or under the control of the government of India.”
Since its inception in March, 2020, to provide assistance to those affected by the COVID-19 pandemic, the fund has come under criticism from various corners for a lack of transparency.
In fact, Gangwal has filed another petition seeking for the PM-CARES fund to be deemed a ‘public authority’ under the purview of the Right to Information Act, prompted by past requests for information under RTI Act being dismissed on the grounds that the fund was not a public authority.
Also read: Why PM-CARES Is A ‘Government Fund’ And Well Within RTI Purview
In the present case, Bar and Bench quoted the Delhi high court as saying the following:
“Only one page reply to such an important issue? There is just one page reply of one Mr Pradeep Kumar, nothing beyond that? Such an important issue and only one page reply is there. There is not a whisper about what the learned senior counsel on the other side is arguing. The issue is not that simple. We need a proper reply,” Chief Justice Sharma remarked.
The bench also noted that a detailed reply from the Union government is required in the case as every issue raised by Divan will require an order to be passed and that the case will inevitably make its way to the Supreme Court.
Divan, during the course of proceedings, accused the government of dragging the matter, to which solicitor general Tushar Mehta, arguing for the government, responded by saying that a detailed reply will be filed within four weeks.
“File a proper reply. The issue isn’t that simple. We need an exhaustive reply,” the bench further said.
The bench set the next date for hearing as September 16.
The petitioner in the case, as well as other commentators, have argued that the PM-CARES fund should be considered as the ‘state’ since Prime Minister Narendra Modi himself is the ex-officio chairman of the fund, and other ministers in his cabinet are trustees.
Further, it is argued that government machinery, as well as the inclusion of ‘PM’ itself in the name of the fund, was used to promote it and the fund is exempt from provisions of the Foreign Contributions Regulation Act (FCRA).
Also read: PM CARES Fund Now Has ‘Independent Auditor’ But Remains Beset by Lack of Transparency
The government, on the other hand, has argued that the fund does not constitute the ‘state’ because it was set up as a charitable trust and the Prime Minister and other ministers have “no control over it”. Being a charitable trust, the government further argued that it is not liable to share ‘third-party information’ regarding the voluntary donations made by individuals to the fund.
On the issue of transparency, the government has argued that the trust functions with transparency and its funds are audited by an auditor who is a chartered accountant from the panel prepared by the Comptroller and Auditor General of India (CAG).