Debunking False Information About PM CARES Fund
Is PM Cares yet another promotional gimmick, or worse, a scam run in the name of good intentions?
| Pranjal Agarwal June 30, 2020
The Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM CARES) fund, a public charitable trust, has of late been the subject of massive scrutiny. Interestingly, while the Prime Minister is its ex-officio Chairperson, and the Minister of Defence, Minister of Home Affairs and Minister of Finance, Government of India are its ex-officio trustees, neither is the Fund substantially controlled by the government, nor is it a non-governmental fund. The only possible explanation for this is that the PM CARES Fund is a unique creation of our Prime Minister, wherein the tossed coin need not result in heads or tails because modern mathematical theorist forgot to consider the possibility of ‘magic’.
Decoding this ‘magic’ involves two primary aspects:
1) Need of the Fund; and
2) Transparency and the Cloak of Government.
Need of the fund
The opposition alleges that the existence of the Prime Minister National Relief Fund (“PMNRF”) renders the creation of another fund redundant and a mere publicity stunt. However, the Bharatiya Janta Party (“BJP”) has strongly dismissed this allegation through four major rebuttals. First, the PM Cares fund was set up to tackle the immediate crisis due to the Covid-19 pandemic in a targeted manner, thereby, implying that the ambit of PMNRF is broader than that of PM CARES. Some also argued that an additional feature of PM CARES is to facilitate and aid research. However, both these arguments fall flat as the objective of PMNRF is to provide immediate relief in scenarios of natural calamities and loss of life which very well covers all actions required to fight the Covid-19 crisis, including research. This is particularly so since the Home Ministry invoked Section 35 of the Disaster Management Act and declared the Covid-19 crisis as a notified disaster. Even otherwise, the trust deed can be amended to include additional charitable purposes of the trust. Second, it was contended that the liquidity of PMNRF is merely 15% of the Fund, thereby, making it ineffective in dealing with the crisis. However, proponents of the Fund miss the crucial point that just as an appeal by our loved leader to donate to PM CARES brought in Rs 9,677.9 crore ($1.27 billion), a similar impassioned appeal to donate to the PMNRF could have solved the liquidity crunch of the latter, too. The third and most used rebuttal was that the President of the Indian National Congress (“INC”) party was part of the Managing Committee of PMNRF, thus, casting doubts on its transparency. However, this too, is misleading, and the same was acknowledged in the Delhi High Court judgment of PMNRF v. Aseem Takyar in 2018:
“Further, once PMNRF was deemed to be a Trust (in 1985), the Managing Committee entrusted the entire management of PMNRF to the Prime Minister. Since then, the fund is headed by the Prime Minister of India who in turn appoints his delegate for the administering the same under his directions…”
Thus, PMNRF effectively operates on similar lines as the PM CARES Fund.
Lastly, it has been argued that unlike PM Cares, PMNRF does not accept donations less than INR 100. However, this issue could have been easily tackled by introducing an amendment as opposed to registering a new trust. Clearly, the lack of need for the PM CARES Fund fits well with the fact that there is no purpose to magic than wooing.
Transparency and the Cloak of Government
The deflection strategy to direct allegations concerning lack of transparency of PM Cares fund to PMNRF is grounded on nothing but whataboutery. While it cannot be denied that keeping any Fund, including PMNRF outside the purview of the RTI is not only technically wrong but also principally wrong, establishing a transparent mechanism for the public scrutiny of both funds would have been a more prudent decision rather than blaming Nehru for not bringing PMNFR within the purview of the then non-existent RTI Act.
PM Cares fund squarely falls under the domain of ‘public authority’ under Section 2(h)(d) of the RTI Act, 2005 read with the object of the Act as it is controlled and operated by the government. It is headed by a constitutional authority, i.e. the office of the Prime Minister of India (“PMO”) and is administered by a Joint Secretary in the PMO as Secretary to the fund. Even the head office of the Fund is PMO, South Block, New Delhi. Furthermore, the State emblem is incorporated as part of the logo of PM CARES fund. Under Section 3 of the State Emblem Of India (Prohibition Of Improper Use) Act, 2005, the State Emblem cannot be used to show a relation with the government unless, of course, the fund is related to the government. Thus, BJP’s denial of both the violation of Section 3 and the fact that PM Cares is a ‘public authority’ under the RTI Act, in the same breath, is nothing but a cruel joke.
Moreover, even an office memorandum of the Ministry of Corporate Affairs, Government of India dated 28th March, 2020 categorically acknowledges that “The Government of India has set up the Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund’ (PM CARES Fund)…”. However, nationalism calls for believing that trustees, the highest functionaries of the state act in their personal and not official capacity while handling the trust since ‘ex officio’ positions can for all practical purpose be enjoyed personally.
More importantly, the credit to the bounteous donations made to PM CARES undoubtedly goes to the Prime Minister, the prestige of his office and the credibility which the fund enjoys owing to it being administered by government officials. The PM’s appeal for donations in the midst of a global health pandemic was met with a swift and urgent response by citizens who trusted that the PMO would use their hard-earned money to help the beneficiaries of the trust. In this regard, to now deny that the trust is a ‘public authority’, and thus free from ‘public scrutiny’ is fraud since the voluntary nature of donations was premised upon the representation that the fund was of the government. In fact, the lack of transparency is a cause of concern for the citizens since they can never know if their donation is being unlawfully appropriated by friends of the ruling party or any corrupt government official. One such concern has been raised by Saket Gokhale, an RTI activist who alleges embezzlement of INR 750 Crores based on his investigation on the photo of a ventilator claimed to be bought using PM Cares fund by the high command of BJP.
Another concern regarding transparency is the appointment of Mr. Sunil Kumar Gupta, chairman of SAARC Associates and a fellow member of the Institute of Chartered Accountants of India(ICAI) as the ‘independent’ auditor of the fund. The independence of this accountant is questionable as per the test laid down for independence of auditors under the ‘Guidance note on independence of auditors’ issued by the Council of ICAI itself. It states that the independence of an auditor must not only exist in fact but also appear to so exist to all reasonable persons. The test therefore is whether a reasonable and informed third party having knowledge of all relevant information would reasonably conclude to be unacceptable. Mr. Sunil Kumar Gupta can be considered to fail miserably at this test as he is a lifelong trustee of Rashtriya Antyodaya Sangh, a public charitable trust with close ties to the Rashtriya Swayamsewak Sangh. His trust also organised a show at Kedarnath, Uttarakhand in 2018 with our Prime Minister and the Mr. Tivendra Singh Rawat, Chief Minister of Uttarakhand & a member of the RSS from 1979 to 2002 as the Chief Guests. This concern however can be proved to be a mere conjecture if one can establish that BJP and RSS are unrelated.
Lastly, even assuming all concerns to be invalid, it cannot be disputed that the citizens of India are the beneficiaries of the trust. Under the Indian Trusts Act, 1882, the beneficiaries are entitled to inspect copies of instruments of trust, accounts of trust property and vouchers to support the same at all reasonable times. However, the trustees of PM Cares Fund have turned a deaf ear to the appeal of the public to disclose the said information possibly because a pandemic justifies a complete lockdown of democracy itself, let only rights of citizens.
In conclusion, the more we probe into this matter, greater is the certainty that the fund is either a ‘public authority’ under the RTI Act or should be open for public scrutiny via other means. Otherwise, the trustees of the fund should be booked for what seems to be a fraud on the people of India. Because unlike what the magician would like to believe, this is not an entertainment show and nor is it his claims that we brand it as fiction, it’s the real world.
Pranjal Agarwal is a final year law student at National Law Institute University, Bhopal, Convener at Legal Aid Clinic, NLIU and Editor-in-Chief of the Indian Arbitration Law Review. Views are personal.