We all know that the Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM CARES) Fund doesn’t come under the ambit of Right to Information (RTI). This oped seeks to discuss certain aspects of this issue.

Present context

• In a recent affidavit, the Delhi High Court was informed that the PM CARES Fund is not a Government of India fund and that the amount collected by it does not go to the Consolidated Fund of India is strange.
• This petition is seeking the PM-CARES fund to be declared as the “State” under Article 12 of the Constitution.

Intriguing facts about PM-CARES fund

• PM CARES has been created not by law, not by notification, but by the mere creation of a webpage, and set up last year in March to raise funds for those affected by the COVID-19 pandemic.
• The page lists its structure, functions and duties in an arbitrary manner. The official appeals for funds are made under the national emblem.
• The most significant lie of this sworn statement is that the Government has no control over the Fund.

What is the case?

• The PM-CARES Fund was not subject to CAG audit since the Supreme Court regarded it as a public charitable trust.
• It is not under public scrutiny. Also contributions to it were 100% tax-free.
• It is accused that there was statutory fund already in existence under the Disaster Management Act of 2005 to receive contributions to finance the fight against a calamity.

What is RTI?

• RTI is an act of the parliament which sets out the rules and procedures regarding citizens’ right to information.
• It replaced the former Freedom of Information Act, 2002.
• Under the provisions of RTI Act, any citizen of India may request information from a “public authority” (a body of Government or “instrumentality of State”) which is required to reply expeditiously or within 30.
• In case of the matter involving a petitioner’s life and liberty, the information has to be provided within 48 hours.

About PM CARES Fund

• The PM CARES Fund was created on 28 March 2020 following the COVID-19 pandemic in India.
• The fund will be used for combat, containment and relief efforts against the coronavirus outbreak and similar pandemic like situations in the future.
• The PM is the chairman of the trust. Members will include the defence, home and finance ministers.
• The fund will also enable micro-donations. The minimum donation accepted is ₹10 (14¢ US).

The other funds

(1) National Disaster Response Fund (NDRF)

• The statutorily constituted NDRF was established under the Disaster Management (DM) Act of 2005.
• The NDRF is mandated to be accountable, and answerable under the RTI Act, being a public authority, and auditable by the Comptroller and Auditor General of India.

(2) Disaster Response Fund

• The DM Act also provided for a Disaster Response Fund — state and district level funds (besides the national level).
• It also collects and uses the donations at the local level, with mandatory transparency and audit provisions.

(3) Prime Minister’s National Relief Fund

• There is the PMNRF operative since the days of Jawaharlal Nehru. It was established with public contributions to assist displaced persons from Pakistan.
• The resources are now utilised primarily to render immediate relief to families of those killed in natural calamities and to the victims of the major accidents and riots.
• However, it has the President of India and the Leader of Opposition also as trustees.

Issues over PM-CARES Fund

• No defined purpose: It is deliberately ignored while a new, controversial, unanswerable, and ‘non-accountable vehicle is created; its character is not spelt out till today.
• Non-accountable: The government seems to consider statutory provisions for enquiry and information seeking to be embarrassing obstacles.
• Centralization of donations: It centralises the collection of donations and its utility, which is not only against the federal character but also practically inconvenient. The issue is seeming, the trusteeship of the fund.

Questions and gaps

• Law/statute: The PM CARES Fund was neither created by the Constitution of India nor by any statute.
• Authority: If that is the case, under what authority does it use the designation of the Prime Minister, designated symbols of the nation, the tricolour and the official (gov.in) website of the PMO, and grant tax concessions through an ordinance.
• Collection and dispensation: The amount received by the Fund does not go to the Consolidated Fund of India. If it goes to the CFI, it could have been audited by the CAG.
• Uncontrolled: The This Trust is neither intended to be or is in fact owned, controlled or substantially financed by any instrumentality of the any govt even being chaired by the PM.

Issue over tax benefits

• Income tax: An ordinance was promulgated to amend Income Tax Act, 1961 and declare that the donations to the PM CARES Fund “would qualify for 80G benefits for 100% exemption”.
• CSR Funds: It will also qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the Companies Act, 2013.
• Foreign donations: It has also got exemption under the FCRA [Foreign Contribution Regulation Act] and a separate account for receiving foreign donations has been opened.

What can be inferred from all these?

• The Centre now considers it as another obstacle and has created a new trust with the Prime Minister and his Ministers only.
• The manner in which the PM CARES Fund was set up — with its acronym created to publicise the point that the PM cares for people — shows a bypassing of the statutory obligations of a public authority.

Query and response: Again ironical

• After initial denials, the Government has conceded it to be a public charitable trust, but still maintains that it is not a ‘public authority’.
• The point is that the PMO operates the Fund, but says it cannot supply any information about the PM CARES Fund because it is not a public authority.

Severe interpretations: Is it an Office of Profit?

• If the PM CARES Fund is unconnected with the Government, then the Fund could become an office of profit.
• And that could disqualify him and the three Ministers from holding those constitutional offices.

Conclusion

• In order to uphold transparency, the PM CARES Fund should be declared as a Public Authority under the RTI Act, and all RTI queries answered truthfully.
• The fund should be designated as a “public authority” under Section 2(h) of the RTI Act.

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The article discusses the issue of growing lack of transparency in the functioning of government.

Issues with Transparent Governance in India

1) Electoral bond

•  They were introduced in February 2017— they allowed anonymous donations to political parties and, therefore, protected the privacy of the donors.
• The Election Commission of India (ECI) criticised the opacity of this financial mechanism.
• The ECI told the government that this arrangement would prevent the state from ascertaining whether a political party has taken any donation in violation of provisions under Section 29B of the Representation of the People Act.
• Section 29B prohibits the political parties from taking donations from government companies and foreign sources.
• Electoral bonds also made it impossible to check whether a company was giving to parties more than what the Companies Act (2013) permitted, that is 7.5 per cent of the net average profit of the three preceding financial years.

2) Sealed envelopes

• Sealed envelope has become a modus operandi in several Indian institutions, including the Supreme Court (SC).
• In the case of political funding by electoral bonds or otherwise, a three-judge bench in 2019 directed political parties to submit the details of donations received to the ECI in sealed cover.
• The Assam administration had to show the progress it was making in the implementation of the National Register of Citizens by submitting reports in sealed covers.

3) Undermining RTI

(A) Reluctance to fill vacancies

• The government did not appoint a Chief Information Commissioner for a year after the incumbent retired in August 2014.
•  Similaryly, government did not fill vacant information commissioner posts in the Central Information Commission (CIC) between 2016 and 2018.
• The backlog of pending appeals had reached 30,000 cases in late 2019 as the CIC has become a rather dysfunctional body.

(B) Government refusing to disclose infromation

• The government refused to disclose information which was previously available under the RTI Act.
• Queries about phone tapping are not responded to anymore.
• In 2016-17, the home and finance ministries rejected close to 15 per cent of the applications they received while the RBI and public sector banks rejected 33 per cent.
• The RBI, for instance, refused to give any information about the decision-making process that led to demonetisation.

(C) Limiting the powers of CIC

• During the 2019 Monsoon Session of Parliament, government amended the RTI Act to limit the power of the CIC.
• The five-year fixed tenure for the Chief Information Commissioner and information commissioners was abolished.
• Their salaries were not fixed any more,  but notified separately by the government.

4.Diluting Whisleblower’s Protection Act

• Whistleblowers can now be prosecuted for possessing the documents on which the complaint has been made.
• Issues flagged by them have to be in “public interest”.
• Issues flagged should not be “affecting the sovereignty and integrity of India”, related to “commercial confidence” or “information received in confidence from a foreign government.

5.Issues with statistical information

• The National Statistical Commission and the Chief Statistician of India faced a credibility crisis when the new GDP series was released.
• Similarly, the National Crime Records Bureau has been affected by delays (its 2017 report was released in October 2019) and deletions.
• The National Sample Survey Office has also raised several concerns.

Conclusion

Transparency is not only necessary for maintaining a democratic polity, it is also necessary for making the economy work. Government actions must be informed by this fact.

B2BASICS

Electoral bond

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This article analyses the importance of peoples’ right to know and instrumental role judiciary played in harmonising it with the Official Secrets Act 1923.

Context

• A High Level Committee (HLC) chaired by a retired judge of the Gauhati High Court was constituted by the Home Ministry through a gazette notification.
• Its mandate was, among others, to recommend measures to implement Clause 6 of the Assam Accord and define “Assamese People”.
• The HLC finalised its report by mid-February 2020 and submitted it to the Assam Chief Minister and through him to the Central government.
• With the Central government apparently “sitting idle” over the report, the All Assam Students’ Union (AASU), which was represented in the HLC, released the report.

The right to know

• The right to know was recognised nearly 50 years ago and is the foundational basis or the direct emanation for the right to information.
• In State of U.P. v. Raj Narain (1975), the Supreme Court carved out a class of documents that demand protection even though their contents may not be damaging to the national interest.
• Court held that “the people of this country are entitled to know the particulars of every public transaction in all its bearing”.
• This view was endorsed in S.P. Gupta v. President of India (1981) and a few other decisions.
• In Yashwant Sinha v. Central Bureau of Investigation (2019), the Supreme Court referred to the decision of the U.S. Supreme Court in New York Times v. United States (1971) wherein court declined to recognise the right of the government to restrain publication of the Pentagon Papers.
• Our Supreme Court held that a review petition based on three documents published by The Hindu was maintainable since the provisions of the Official Secrets Act, 1923 had not been violated.
• The SC held that there is no provision by which Parliament had vested power in the government either to restrain the publication of documents marked as secret or from placing such documents before a court.
• Section 8(2) of the Right to Information Act, 2005 provides that a citizen can get a certified copy of a document even if the matter pertains to security or relationship with a foreign nation if a case is made out.
• Therefore, it is clear that the right to know can be curtailed only in limited circumstances and if there is an overriding public interest.

Consider the question “Analyse the importance of citizens’ right to know and how the judiciary harmonised the peoples right to know with the Official Secrets Act 1923? “

Conclusion

We must keep in mind observation made by the Supreme Court in S.P. Gupta: “If secrecy were to be observed in the functioning of government and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability.”

B2BASICS

Official secrets act

• OSA has its roots in the British colonial era and was originally known as The Indian Official Secrets Act (Act XIV), 1889.
• The act was primarily mandated to gag the voice of a large number of newspapers that came up in several languages, and were opposing the Raj’s policies, building political consciousness and facing police crackdowns and prison terms.
• The act was amended and made more stringent in the form of The Indian Official Secrets Act, 1904, during Lord Curzon’s tenure as Viceroy of India.
• In 1923, a newer version was notified. The Indian Official Secrets Act (Act No XIX of 1923) was extended to all matters of secrecy and confidentiality in governance in the country.
• It was further amended after India got independence in 1951 and 1967. The act in its present form deals with two aspects — spying or espionage and disclosure of other secret information of the government.
• Secret information can be any official code, password, sketch, plan, model, article, note, document or information. Under the act both the person communicating the information, and the person receiving the information, can be punished.

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