New Delhi: The Union government has informed the Delhi high court on Tuesday that the PM CARES Fund was established as an independent charitable trust and was not created under the constitution or parliamentary law.
According to Bar and Bench, the government said in an affidavit that neither the Union nor state governments have “direct or indirect control over the functioning of the fund”. The affidavit adds that the composition of the Board of Trustees “consisting of holders of Public Office ex Officio is merely for administrative convenience and for smooth succession to the trusteeship”.
While the prime minister is the ex-officio chairman of the PM CARES Fund, the ministers of defence, home affairs and finance are ex-officio trustees. There are three trustees, Justice (Retired) K.T. Thomas, Kariya Munda and Ratan Tata.
The government also said that PM CARES only receives voluntary donations and does not receive any government support and nor accept contributions flowing out of budgetary sources of government or from the balance sheets of public sector undertakings, according to Bar and Bench.
The affidavit – filed in response to a plea seeking the declaration of PM CARES as ‘state’ – also reiterated that the fund is not a “public authority” under the Right to Information Act and, therefore, the provisions of the Act do not apply to it.
According to Bar and Bench, the Union government’s affidavit said that the fund functions “transparently and its funds are audited by a chartered accountant whose reports were available to the public on the website pmcares.gov.in”. The fund is administered similarly to the Prime Minister’s National Relief Fund and hence, uses the same emblem and domain name ‘gov.in’, it added.
The affidavit says, according to Bar and Bench, that the instant petition is “based on assumptions and fails to show that the petitioner is personally affected, and is therefore liable to be dismissed”.
‘Fund projects itself as GoI’
Senior advocate Shyam Divan, appearing for the litigant, said that when “high constitutional authorities setting up the trust which has ex officio members, it is nothing but an element or aspect of State”.
He said, according to Indian Express, “Merely by declaring it is not ‘State’ would not exclude or exempt you from the constitutional fetters. If you are not (state) then you can’t have government symbols or a government website so that the public thinks that you are ‘state’. Either you are ‘state’ or you are not.”
He added that “high public and constitutional functionaries” have sought contributions to PM CARES from the public.
The lawyer argued that PM CARES “projects itself as the government of India” by operating on a gov.in domain name, using the photograph of the prime minister and the national emblem. “Divan also drew the court’s attention to public announcements made by the government functionaries, arguing that such persons making the statements are ‘people of responsibility’,” according to Indian Express.
Divan said it was not the PIL’s case that the trust is malafide but that it “can be misused”. He said that the fund cannot be “contracted out of the constitution of India merely by introducing a ‘self-declaration’ stating that it is not a state”, according to IE.
