Declare PM CARES As “State” Under Article 12 Of the Constitution, Plea Filed in Delhi High Court.

(Judicial Quest News Network)

A plea filed in Delhi High Court seeking declaration of the prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM CARES) fund as an authority falling under the definition of “State “Under Article 12 of the Constitution of India.

The PM Cares Fund is ‘State’ as it was formed by the Prime Minister

of India on 27.03.2020 for a noble purpose i.e., to extend assistance to the

citizens of India in the wake of the public health emergency that is the

ongoing Covid-19 Pandemic.

The Court will also take up a pending plea to declare PM CARES a “Public authority “under the Right to Information Act.

Both the petitions were moved by an individual Samyak Gangwal

The Trustees of the PM Cares Fund are the Prime Minister, Defence Minister, Home Minister and the Finance minister of India.

Immediately after the formation of the PM Cares Fund, the union of India through its high government functionaries and the PM Cares Fund represented that the said Fund is set up and operated by the Government of India.

The representations included Letters written by High Government Functionaries, Notifications/Office Memorandums issued by several ministries/departments wherein it was clearly stated that the PM Cares Fund has been set up by the Government of India.

The Representations also included the use of government resources such as- use of ‘. gov.in’ domain name, State Emblem of India and the name ‘Prime Minister’ and its abbreviation on the PM Cares Fund website and in other official and unofficial communications.

When the plea to Declare PM CARES as “ State ” came up before a bench of Chief Justice DN Patel  and Justice Jasmeet Singh  on Thursday court expressed that it was not inclined to issue notice in the PIL. However, it proceeded to club the case with the plea to bring PM CARES under RTI and listed both the matters for hearing on April 23.

The petitioners further contended that ““This Trust is not created by or under the Constitution of India or by any law made by the Parliament or by any State Legislature. This trust is neither intended to be or in fact owned, controlled or substantially financed by any Government or any instrumentality of the Government. There is no control of either the Central Government or any State Government/s, either direct or indirect, in functioning of theTrust in any manner whatsoever. The composition of the Board of Trustees consisting and for smooth succession to the trusteeship and is neither intended to be not in fact result into any governmental control in the functioning of the Trust in any manner whatsoever.”

The petitioners have contended that the PM CARES fund is part of “State” under Article 12 of the Constitution of India. Under following factors

1. It was formed by the prime Minister of India in March 2020 to extend assistance to the citizen of India in the wake of the public health emergency of COVID-19.
2. The Trustees of the PM CARES Fund are the Prime Minister, Défense Minister, Home Minister, and the Finance Minister of India.
3. Immediately after the formation of the trust the PM CARES FUND. It was represented that said fund is set-up and operated by the Government of India. The representation includes Letters written by High Government Functionaries, Notifications/Office memorandums issued by several ministries/departments, wherein it was clearly stated that the PM CARES FUND has been set up by the Government of India.
4. These representations also includes the use of government resources such as the use of .gov.in’domain name, State Emblem of India and the name of the Prime Minister and its abbreviation on the PM CARES Fund website and in other officials and unofficial communications.
5. The official address of the PM CARES Fund was stated to be the Prime Minister’s office South Block New Delshi-110011;
6. The Government of India “deeply and pervasively” controls the fund, and also provides assistance to the fund by seeking donations on its behalf.
7. PM CARES Fund has been established by the Government of India through the PMO;
8. PM CARES Fund performs a public function which is similar to the government functions;
9. PMCARES Fund utilizes the privileges, benefits and exemptions which are reserved for State.

The petitioner contends that there is a need for accountability because Huge donations have been made to the PM CARES Fund by the people of

India. As per a report published in India Spend on 20.05.2020, the PM CARES Fund had received a donation of Rs. 9677.9 Crore out of which Rs.

4,309.3 Crore were from Government Agencies. People of India have mad these donations on the pretext that they will be utilised for, inter alia,

fighting the Covid-19 pandemic. Given the trust which has been reposed in

the PM CARES Fund by the people of India and the public function the Fund

performs, there must be transparency in the Fund’s functioning.

Following were the prayers in the petition

1. Pass a writ, order or direction declaring that the PM CARES Fund

(Respondent No. 2) is ‘the State’ under Article 12 of the Constitution of

India;

• Pass a writ, order or direction to the PM CARES Fund (Respondent

No.2) to disclose its audit reports on the PM CARES website

periodically;

• Pass a writ, order or direction to PM CARES Fund (Respondent

No.2) to disclose every quarter, on the PM CARES website, the

details of the donations received by the Fund. The details ought to

include each donor’s names who has donated Rupees 1 (one) Lakh or

such other figure as this Hon’ble Court may deem fit. Further, the

details ought to be classified under the following heads – total

donations received from Individuals, Private Companies, Public

Sector Undertaking, Proprietorships, Political Parties, NGO’s,

Trustsand so on;

• Pass a writ, order or direction to PM CARES Fund (Respondent

No.2) to disclose quarterly, on the PM CARES website, the details

of the utilization of the funds received by the Fund;

• Pass a writ, order or direction to PM CARES Fund (Respondent

No.2) to disclose quarterly, on the PM CARES website, any

resolutions on the expenditure of the donations received by the Fund,

passed by the Board of Trustees of the Funds and the minutes of

meeting of the Fund;

Senior Advocate Shyam Divan along with Advocates Debo Priya Moulik, AyushShirivastava, Krishnesh Bapat, and Govind Manoharan represented the petitioner