A few days back, some left leaning media portals started publishing articles on the basis of a reply from the PMO regarding an RTI application pertaining to PM-CARES. The application filed by RTI activist Harsha Kandukuri asked the authorities to present the trust deed and other government notifications concerning to the recently set up trust before the public. In return, the PMO refused to discolse the details saying, “PM-CARES is not a public authority, it doesn’t fall under RTI”. This very reply fomented the “Khan Market Gang” and gave them a reason to launch a scathing barrage on the incumbents. However, not much was spoken in the defence of the government for this matter.
But the question still remains- why did the government decline to provide micro-level information regarding the donations? Is it hiding something?
To understand the issue, let us go back in history and break the matter down.
PM National Relief Fund (PM-NRF), a similar trust was set up by our ex PM, Jawaharlal Nehru in his “personal capacity” in the year 1948. Interestingly, PM-NRF too, isn’t under the purview of RTI and CAG. A similar controversy erupted in 2011 on whether it is a “PUBLIC AUTHORITY” or not. Subsequently a legal battle unfolded on the same subject in the Delhi High Court. (Henceforth referring to Delhi HC’s judgement on “PM National Relief Fund vs Aseem Takyar” dated 23rd May, 2018).
Initially Aseem Takyar, (the petitioner then but a respondent now), adhering to a court order sought information about the trust from the Central Public Information Officer (CPIO), but was given limited data. He further appealed to the Central Intelligence Commission (CIC) after which the CIC passed a final order directing the CPIO to place all the details of institutional donors of the PM-NRF in public domain. Dismayed by this, the trust filed a writ petition before the Delhi HC challenging the CIC. Unfortunately, the matter was taken up by a single judge who refrained from giving a conclusive finding. Aggrieved by the decision of the judge, the trust (hereafter the appellant) appealed again which was taken up by a two-judge bench.
As the case reopened, a debate arose on the RTI act-sect. 2(h) which defines a “PUBLIC AUTHORITY”. Eventually, all other ambiguities were cleared and the debate boiled down just to one word mentioned in sect. 2(h)(i): – “control”. The judges brainstormed on whether there was substantial evidence to call the trust, “controlled by the government” or not.
Amidst this discourse, another debate that surfaced in court was due to Article 21 of the Indian Constitution which guarantees right to privacy. Moreover, the appellant cited RTI Act sections 8(1)(e) and (j) which exempt some institutions from divulging information in its defence. If PM-NRF is brought under RTI, it would be imperative that information regarding donors and receivers would have be made public. This breaches Article 21. And as PM-NRF is a trust, the fiduciary relationship gets quashed too.
The two-judge bench couldn’t come to a conclusion and referred the case to the then acting Chief Justice. The final verdict hasn’t been delivered yet and thus the matter is subjudice.
PM-CARES has been established on similar lines as the PM-NRF. Thus, whatever the govt has done as far as this matter is concerned is in accordance to the law.
As and when the above case is concluded, the next course of action would be determined for both the trusts. But till then, unnecessary aspersions need not be cast upon either of the two funds which are meant for humanitarian relief and instead work constructively in this hour of a health emergency.