HC asks Centre to file 'exhaustive' reply on plea to declare PM CARES Fund a 'State'

The Delhi High Court on Tuesday took exception to the Centre filing a one-page reply on "such an important issue" of PM CARES Fund on which a petition has been filed to declare it as a 'State' under the Constitution to ensure transparency in its functioning.

Observing that the issue concerning the Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) is "not so simple" the high court asked the Centre to file a “detailed and exhaustive” response in the matter.

"You have filed a reply. One page reply to such an important issue? Nothing beyond that? Such an important issue and one-page reply. There is not even a whisper of what the senior advocate (of petitioner) is arguing. You file a reply. The issue is not so simple. We want an extensive reply,” said a bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad.

The high court was informed by the counsel for the Centre that a detailed reply was already filed in a similar petition by the same petitioner.

Solicitor General (SG) Tushar Mehta, representing the Centre, said all these arguments raised by the petitioner are relevant to be decided.

The chief justice responded, “learned SG let a proper exhaustive reply be filed because this matter will certainly travel to the apex court and we have to decide and give judgement and deal with all the issues raised”.

The bench said, “Let a detailed and exhaustive reply be filed in four weeks. Rejoinder, if any, be filed in two weeks thereafter. List on September 16.”

Petitioner Samyak Gangwal, represented through senior advocate Shyam Divan, in the petition filed in 2021 has sought to declare PM CARES Fund a 'State' under Article 12 of the Constitution and to direct the fund to disclose its audit reports on the PM CARES website periodically.

The high court had earlier issued notice to the Centre on the petition.

Another petition filed by the same petitioner in 2020 seeking to declare PM CARES a 'public authority' under the Right to Information (RTI) Act is also pending in the court which had earlier sought the Centre's reply on it.

In the 2021 petition, he has also sought direction to disclose funds deposited every quarter, on the PM CARES website, and the details of the donations received by it which shall include each donor's name.

An affidavit filed by an Under-Secretary at the Prime Minister's Office (PMO) who is discharging his functions in the PM Cares Trust on an honorary basis in response to the 2021 petition, has said the trust functions with transparency and its funds are audited by an auditor -- a chartered accountant drawn from the panel prepared by the Comptroller and Auditor General of India.

It contended that irrespective of the status of the PM CARES Fund under the Constitution and the RTI Act, it is not permissible to disclose third-party information.

In support of his contention that the PM CARES Fund is a 'State', the petitioner said it was formed by the Prime Minister on March 27, 2020, for a noble purpose, that is, to extend assistance to the citizens of India in the wake of the public health emergency -- the ongoing Covid-19 Pandemic.

The Trustees of the fund are the Prime Minister, Defence Minister, Home Minister, and the Finance Minister, and immediately after the formation of the fund, the Centre through its high government functionaries represented that the fund was set up and operated by the Government.

“The Representations also included the use of government resources such as- use of '.HYPERLINK "http://gov.in"\ngov.in' domain name, State Emblem of India and the name 'Prime Minister' and its abbreviation on the PM Cares Fund website and in other official and unofficial communications. “Further, the official address of the PM CARES Fund was stated to be the Prime Minister's Office South Block, New Delhi,” it said.

Based on representations, huge donations were received by the PM CARES Fund and as per the information provided on its website during the financial year 2019-20, an amount of Rs 3076.62 crore was collected merely within four days, it said.

“The petitioner is not attributing or even alleging any wrongdoing whatsoever on the part of the present Ex-Officio Trustees of the PM CARES Fund. However, since the PM CARES Fund's Trustees are high government functionaries, it is essential that checks and balances envisioned in Part III of the Constitution are put in the place on the functioning of the fund to extinguish any chance of an allegation of 'quid pro quo',” it said.

In his alternative prayers, Gangwal has sought to direct the Centre to publicise that the PM CARES Fund is not a fund of the Government of India and to restrain PM CARES from using 'Prime Minister of India' or 'Prime Minister', including its abbreviations its name, on its website, Trust Deed and other official or unofficial communications and advertisements.

The Centre has said all donations received by the trust are received via online payments, cheques, or Demand Drafts, and the amount received is audited with the audited report and the expenditure of the trust fund displayed on the website.

The officer, who had filed the affidavit, has also said he was discharging his functions in the PM CARES Trust on an honorary basis which was a charitable trust not created by or under the Constitution or by any law made by Parliament or by any State legislature.