PM CARES Fund is a public charitable trust, not controlled by government of India: Centre to Delhi HC

“When you have high constitutional authorities setting up the trust which has ex officio members, it is nothing but an element or aspect of State. 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,” Divan said.

Divan further argued that PMCARES “projects itself as the government of India” indicating that it operates on the domain name of the government of India and has the photograph of the Prime Minister as well as the Ashoka Pillar. 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”

“We are not saying trust is malafide. We have said that it can be misused,” Divan argued, clarifying that he was not questioning the purpose of the trust. 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.

The Centre thereafter sought an accommodation as the solicitor general, who is representing the Centre, was unavailable.

The Centre in its affidavit has said that the trust is “neither intended to be or in fact owned or controlled” by any government or any instrumentality of the government and the composition of the board of trustees consisting of holders of public office is merely for administrative convenience.

The Centre has said that the trust is not a public authority under RTI and it accepts voluntary donations by individuals and institutions and any contributions flowing out of budgetary sources of government are not accepted. “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”, and is not intended to be controlled by the government in any manner, the Centre added.

The affidavit also states that since it is not constituted under law or the Constitution, therefore PMCARES does not constitute a public authority under the provisions of the RTI Act. “That the cause for which PM CARES Fund/Trust was created and exists is purely charitable and neither the funds of this trust are used for any government projects nor is this trust governed by any of the government policies. So the PMCARES cannot be labelled as a ‘public authority’,” the affidavit states.

“The funds of appellant trust do not have any government character as no guidelines can be laid down for disbursement of the amount from the funds of PMCARES-Trust and the contributions made to PMCARES-Trust enjoy exemption under Income Tax Act like other private trusts,” the affidavit states, adding that the national emblem and domain name ‘gov.in’ are being used for the Prime Minister’s National Relief Fund and the same are also being used for PM CARES Fund.

The affidavit refers to a 2020 judgment of the Supreme Court wherein the SC held that “mere fact that administration of PM CARES is vested in trustees will not itself take away the public character of the trust”. The SC said that “PM CARES Fund is a charitable trust and does not receive any government money”.

The affidavit further states that the objects of the trust have been made available irrespective of caste, creed, sex, region etc, and the trust deed of the PM CARES Fund along with the grants sanctioned from the fund are available in the public domain on the website ‘pmcares.gov.in’ along with the audited reports.

The Centre has said that the trust functions on the principles of transparency and public good in the larger public interest like any other charitable trust and, therefore, cannot have any objection in uploading all its resolutions on its website to ensure transparency. Further irrespective of whether the trust is a ‘state’ or other authority within the meaning of Article 12 of the Constitution of India and or whether it is a ‘public authority’ under the Right to Information Act, “it is not permissible to disclose third party information”, the affidavit states.