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On 28th March 2020, The Prime Minister announced the launch of the Prime Minister's Citizens Assistance and Relief in Emergency Situation (PM-CARES) Fund with a view to accepting donations to provide relief during COVID-19 pandemic and other situations of the similar nature. Shri Harsha Kandukuri an LLM student on 1st April 2020 filed an RTI with Prime Minister's Office for trust deeds of PM –CARES fund, all government orders, notification, and circulars which dealt with the creation and operation of the PM-CARES fund trust. The reply for the RTI mentioned that PM –CARES Fund is outside the purview of RTI because it is not a public authority as per the provisions of section 2(h) of the RTI Act 2005. The reply further stated the relevant information with regards to the fund can be seen on the website. The information shown on the website only highlights the following facts which are as follows: PM Narendra Modi is the ex-officio Chairman, Union Home Minister Amit Shah, Defence Minister Rajanath Singh and Finance Minister Nirmala Sitharaman is ex-officio trustees of the PM Cares Fund. It states that the money received through the PM Cares Fund does not come within the ambit of Article 266(2) of the Constitution which mentions that all public monies received by or on behalf of the Government of India shall be accredited to the public account of India.

Given the above, coupled with the Fund not being a Public Authority raises questions with regards the following:

  • registration under Section 12A (a) of the Income Tax Act, 1961

  • grant or necessity of a Trust deed certificate

  • registration under Section 6 (1) (a) of the Foreign Contribution (Regulation) Act, 2010

considering the Fund has received exemptions from provisions of both the aforementioned legislations.

Furthermore, the questions lies in the construction of the trust, control, usage of emblem and government domain name of the Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) in the light of the uncertainties surrounding it. It is peculiar to elucidate that The State Emblem of India (Prohibition of Improper Use) Act, 2005 (Hereinafter, referred to as the Emblem Act) forbids the improper use of State Emblem of India for any professional and commercial purposes and for matters connected therewith or incidental thereto. Contrary to this explanation regarding the use of The State Emblem of India (Prohibition of Improper Use) Act, 2005, the PM Cares Fund not only uses the State Emblem of the Sarnath Lion Capital of Asoka as its logo but also on routes where the donations to the fund are promoted and at times, controversially marketed.

Section 3 of the Emblem Act, states that ‘no person shall use the emblem in any manner which tends to create an impression that it relates to the Government’. Nevertheless, section 3, also sets out that an exemption shall be permitted if previous permission by the Union Government is received for the same.

This proximity shows that although the Prime Minister's Office has declared that the Fund is not a public authority under Section 2(h) of the RTI Act, the Central Government has allowed the fund to use the Emblem or its colourable imitation. However, it should be taken into consideration that the Central Government has not yet issued any notification in the official gazette which is necessary as per Section 11 of the Emblem Act. By virtue of this notification, the Centre is allowed to make rules to execute the purposes of the legislation, in relation to the PM Cares Fund.

When it comes to the monetary application of the fund, the absence of transparency may lead to speculations that the emblem is or may be used for the purposes of business which are specifically barred under section 4. However, it is arguable that the interpretation of the term ‘person’ within the act excludes the Prime Minister along with the Cabinet ministers who serve in an ex-officio administrative capacity for the fund because they represent the Central Government who have general powers to enumerate conditions for the use of Emblem for the various purposes under Section 6 of the Act. It should be noted that the trust is not a part of any of the Government scheme or business of the Central Government consequently is not subject to the audit of Comptroller and Auditor General of India (CAG). The trust permits to receive donations from the Public Sector Units (PSUs) and after taking into consideration the current situation of the country where the PSUs are being sold to private entities; it becomes impossible for a layman or any other common man to know where the money is going if the government acts in a disorganised and lawless manner.

The basic principle of the RTI act is to make sure that the Public authority functions with utmost transparency and accountability. The dilemma around public authority for Prime Minister's National Relief Fund (PMNRF) is very much similar to that of the PM- Cares Fund.

While there are many individuals who question the existence of the fund, it is relevant to know where the money is being directed and whether or not it comes within the scope of the RTI Act. It would not be wrong to say that this is for sure an instance of bad governance and the Judiciary must take an independent and an impartial stand in its interpretation in order to uphold the dignity of its citizen and the act and to justify the democratic nature of the government. The Constitution itself bestows the right to information on every citizen and it is the duty of the government and the judiciary to justice to the same.