Amid the ongoing Delhi High Court hearing of petitions seeking transparency about the PM CARES Fund, the Union government on January 31, claimed once again that it does not control the fund. This is despite the fund bearing the name of the Prime Minister and being vigorously promoted by PM Narendra Modi and former Vice President Venkaiah Naidu among others, as well as Indian embassies across the world. The logo of the fund is the emblem of the Lion Capital of Asoka at Sarnath, and the website uses the official domain ‘gov.in’, which is reserved for government agencies. It is run from the Prime Minister’s Office(PMO) and is administered by PMO officials. Yet, the Union government has repeatedly rejected requests for information under the Right to Information Act (RTI), claiming that the fund is not controlled by the government and is therefore not a ‘public authority’ under Section 2(h) of the RTI Act.
While the government has also refused to share details about the Prime Minister's National Relief Fund (PMNRF), which is very similar to the PM CARES Fund, other funds such as the National Disaster Response Fund (NDRF) and various Chief Minister's Relief Funds (CMRF) do fall under the ambit of the RTI Act. However, these funds have not been promoted by the Union government as aggressively as the PM CARES Fund, which has received a far higher amount in donations than any of the other funds. Yet, amid sustained criticism and demands for transparency, the Union government has pushed back and refused to divulge specific information on the donations and expenditures of the fund since its establishment.
The PM CARES Fund is a ‘public charitable trust’ set up on March 27, 2020, soon after the onset of the COVID-19 pandemic in India. It was formed to deal with emergency situations such as the pandemic and was registered under the Registration Act, 1908. The Prime Minister is the ex-officio chairperson, and the Ministers of Defence, Home Affairs, and Finance are ex-officio trustees. PM Modi nominated former Supreme Court judge Justice KT Thomas, former deputy Lok Sabha speaker Kariya Munda, and Tata Trusts Chairman Ratan Tata as the Board of Trustees, and the Board nominated former Comptroller and Auditor General of India Rajiv Mehrishi, former Chairperson of Infosys Foundation Sudha Murthy, and Anand Shah, Co-founder of Teach for India and former CEO of Indicorps and Piramal Foundation, to the Advisory Board of the trust. It is administered by officers in the PMO on an honorary basis.
When the fund’s creation was first announced by PM Modi on Twitter, he faced criticism from the opposition for setting up a new fund with a catchy name and opaque operations when a similar fund, the PMNRF, already exists. Historian Ramachandra Guha had called PM CAREs a ‘self-aggrandising’ name deployed to allegedly exploit a massive tragedy, to build the PM’s brand. He also questioned why in a time of urgent crisis, movie stars and businessmen such as Akshay Kumar, Gautam Adani, and many others publicly donated huge amounts to the PM CARES Fund and promoted it when they could be giving the funds to local hospitals and relief measures instead. Contributions worth crores of rupees were sent in donations after cutting down on salaries of government staff including those in the railways, the Sports Authority of India, and the Department of Space, among others, as well as private sector banks and corporates. A few officials had even alleged that they faced pressure to donate to the fund. An exception was made for PM CARES by amending the Companies Act, 2013, to allow donations through CSR (corporate social responsibility) funding from corporates.
The decision to allow uncapped corporate donations to the fund to count as CSR expenditure — a facility not provided to PMNRF or various CM’s Relief Funds — goes against previous guidelines stating that CSR should not be used to fund government schemes. A government panel had previously advised against allowing CSR contributions to the PMNRF on the grounds that the double benefit of tax exemption would be a “regressive incentive”.
At the time that PM CARES was established, the PMNRF had funds worth Rs 3,800.44 crore as of the end of the financial year 2018-19. In FY 2019-20 alone, the PM CARES Fund raised donations worth Rs 3,076.62 crore. In 2020-21, the funds available went up to Rs 10,990.17 crore. By the end of 2022, the Fund had Rs 5,415.65 crore left, having received Rs 1896.76 crore in voluntary contributions, and Rs 40.12 crore in foreign contributions that year.
The PMNRF on the other hand, showed a total income of Rs 805.38 crore in 2021-22, and was left with a balance of Rs 5,556.83 crore at the end of the year. The NDRF on the other hand, which was set up under the Disaster Management Act, 2005, and falls under the purview of the Comptroller and Auditor General (CAG) of India and RTI Act, did not have a clear mechanism to receive public contributions, The Wire and RTI activist Lokesh Batra found in 2020. A couple of months later, the Supreme Court rejected a request to transfer funds from PM CARES to the NDRF, saying that the government was free to do so if it found it appropriate.
Following demands to share the trust deed of the Fund, it was released by the government months later in December 2020. In June of that year, the PM CARES website was updated to declare that an independent auditor M/s SARC & Associates was appointed to audit the Fund in April 2020. The same firm also audits the PMNRF. The Supreme Court has also ruled that PM CARES need not be audited by the CAG.
The PMNRF was set up in 1948 to accept public contributions for relief efforts in the aftermath of the Partition and is now used to aid people affected by natural calamities, major accidents, and riots. Since 1985, the PMNRF is headed by the PM and is also administered by PMO officials.
Much like PM CARES, PMNRF too has largely remained away from the purview of the RTI Act. In 2007, then Chief Information Commissioner Wajahat Habibullah said that even if the PMNRF could not be categorised as a public authority, since its information was held by the PMO which is a public authority, the PMO was obliged to make information accessible to the public under the RTI Act. This was said with regard to an RTI query by a man named Mohammad Muzibur Rehman, who had raised doubts about the alleged misappropriation of contributions by employees of South Eastern Coalfields Limited (SECL) to the PMNRF. Rehman had also raised doubts on the actual deposit of funds raised in contribution towards various calamities including various cyclones, the Kargil war, and the 2001 Gujarat earthquake. The subsequent inquiry reportedly revealed that out of a total of Rs 40.65 crore collected through contributions from employees of Coal India Limited (CIL), only Rs 30 crore was received by the PMNRF.
Similar to the plea over PM CARES, another case is ongoing in the Delhi High Court, seeking that PMNRF also be declared a public authority under the purview of the RTI Act. In Aseem Takyar v. Prime Minister National Relief Fund, a Division Bench of the Delhi HC reached a split verdict in 2018, and the case remains pending. The plea was moved by the PMNRF challenging a Central Information Commission order to provide details of institutional donors of PMNRF in response to Aseem Takyar’s RTI query. This plea was dismissed by a single judge bench in 2015, without deciding whether the fund is a public authority. Following the split verdict, the matter remains pending.
An intervention application has now been filed in the plea by Commodore Batra. Asserting that PMNRF must be classified as a public authority, Batra pointedly contested the government’s claim that it was not bound to share information as all contributions to the fund were voluntary in nature. He pointed to the fact that the PMNRF receives funds from non-encashed electoral bonds, which cannot be considered voluntary.
In June 2022, the Punjab State Information Commission (SIC) declared the Punjab CM Relief Fund for COVID-19 a public authority, bringing it under the purview of the RTI Act. Similarly, the Chief Minister's Distress Relief Fund (CMDRF) in Kerala too falls under the RTI Act. In the past, RTI queries have revealed significant information about spending from CMRFs of Gujarat, Telangana and other states. But several RTI requests for information on PMNRF and PM CARES have been rejected by claiming that these are not ‘public authorities’ as defined by the RTI Act.
In the ongoing case in the Delhi High Court, the plea moved by Samyak Gangwal has sought the declaration of PM CARES Fund as a "State" under Article 12 of the Constitution of India, making it a public authority under RTI Act. This is to allow for more transparency and accountability by sharing its audit reports periodically, disclosing quarterly details of donations received and their respective utilisation. The PM CARES website has annual reports of receipts and payments, with expenses so far, made mainly towards COVID-19 management activities such as purchasing ventilators, setting up COVID-19 hospitals (in Muzaffarpur, Patna, Delhi, Lucknow, Jammu, and Srinagar), the installation of medical oxygen plants, procurement of vaccines, setting up RT-PCR testing labs, and funds allotted to states and UTs for “welfare of migrants”.
The spending of PM CARES Fund towards purchasing government machinery has also been cited as a reason to bring the Fund under the RTI Act as a government entity, apart from the use of government infrastructure (the PMO), the ‘gov.in’ domain name, and the promotion of the fund by the Prime Minister – visible symbols and messaging around the Fund which creates the impression among the public that it is controlled by the government.
The Union government’s reasons for not divulging details on PM CARES have remained inconsistent over the past three years. Initially in December 2020, in an RTI response, the Union government said that PM CARES Fund is a body "owned by, controlled by, and established by" the government, but claimed that it cannot fall under RTI Act as it is administered by "private individuals" as trustees and financed by donations from individuals, organisations, and PSUs. Later, in September 2021, the Union government said that PM CARES was not owned, controlled, or substantially financed by it. Recently on January 31, the government reiterated this stand. On the other hand, Gangwal’s plea has also sought that if the Fund cannot be declared a “State” under the Constitution, the Union government must widely publicise that it is not a government-owned fund, and also stop using the term "PM", the State emblem, the domain name "gov.in" in its name and website, and also the PM's Office as its official address.