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In contrast, judges of the Supreme Court say, PM Cares Fund prefers darkness over sunlight. Recently, Prime Minister's Office refused to disclose any information relating to the PMO Cares Fund by stating that does not come under any definition of public authority under the Right to Information (RTI) Act, 2005.
The PM Cares Fund does not fall within definition the defined category a, b, c and ii, because it has not been constituted under Constitution or any Parliament. We were left with only two categories name such as - body owned, controlled, or substantially financed by government and body created under notification or order issued by the government.
Before moving ahead, the decision of Delhi High Court in the National Stock Exchange of India Limited v. Central Information Commission is totally noteworthy, wherein Court held that these three conditions needs to keep in mind - owned, controlled, and substantially financed, are distinct. Even if one of three satisfied bodies, it would be sufficient to declare it’s a public authority.
I argued to PMO Cares Fund towards falling under the definition of public authority because the government exercises substantial control over Funds. However, it may not be a public authority on the ground that it’s owned or substantially financed by the government or created under notification/order issued by the government.
The control of the government over the body should be substantial and not merely supervisory or regulatory. In later decisions, courts followed this position. I do not agree with this view since the Supreme Court construed the term “controlled” broadly which is inconsistent with the objective of the RTI Act (explained in later part under a liberal interpretation).
Even we consider the meaning of "controlled" as interpreted by the Supreme Court since the PMO Care fund would be the public authority because of deep and substantial control exercised by the government over Fund. The following were a few inclusive points that support my proposition.
The Prime Minister heads of PM Cares Fund ex-officio Chairperson of Board of Trustees along with Minister of Defence, the Minister of Home Affairs and Minister of Finance is an ex-officio member of the trustee. Persons associated with this trust are responsible for constitutional functionaries and hence it gives an impression of public office.
The Prime Minister's office has made an appeal to the public towards the contribution of Fund through media. Furthermore, PM's pictorial representation used by government advertisements it’s making appeals for contribution.
One may argue that control is exercised only by Prime Minister and his fellow Ministers not in their own constitutional capacity, but in a personal capacity as ex-officio chairperson and members. In PMNRF Case, the Government of India also expresses this argument before a Delhi High Court.
This argument lacks reasoning and is not considered evidence by material facts. In the PMNRF case, Justice Ravindra Bhat took views of Prime Minister says, as Chairperson of trust, acting on his constitutional authority. I do not see any reason regarding the dispute of views of Justice Bhat.
Since thereof, PM Cares Fund’s trust has not disclosed details of donors, we cannot conclude there is substantial funding by PSUs. The definite conclusion can be made only if information regarding donors can be made public. As far as ownership of funds is concerned, the PM Cares Fund is created under trust, and hence the question of ownership by the government does not arise anymore.
Notification issued by government
The applicability of the RTI Act on PMNRF was in question before Delhi High Court in PMNRF Case. The question of dispute on whether the formation of PMNRF can be in regard to a notification issued by the government. The PMNRF was legally following an appeal made by way of press note in the year 1948 by Prime Minister Jawaharlal Nehru. Later, an application filed in 1973 to register funds as a trust to get an exemption from an Income Tax.
Liberal Interpretation
When a particular word in Act admits two meanings or vague, the court takes the reference of objective and reasons on Act to found out that true intent behind the word. I believe the Supreme Court took a very broad meaning of "control" in Thalappalam, defeating the objective of the RTI Act. Justice Bhat in Bhagat Singh v. CIC has brilliantly noted the underlying idea behind the RTI Act.
Transparency enhances the credibility of any institution. The absence of clear objective and rationale behind creation of PM Cares fund when PMNRF is in existence since 1948, cast doubts over the newly created bodies. The public fund demands PMO to disclosed trust agreement and other relevant information as per accordance in suo motu of disclosure under the RTI Act. This disclosure would bring trust in the public and reduced the fears from lack of transparency.
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