Contributions Made To The Fund Are Voluntary, No Compulsion For Anyone To Donate; Bombay HC Dismisses Advocate's PIL Seeking Public Declaration Of PM Cares Fund [Read Judgment]

The Bombay High Court on Thursday dismissed a public interest litigation filed by Advocate Arvind Waghmare seeking public declaration of money received for PM Care's Fund observing that the contributions made to the said Fund are voluntary in nature and there is no compulsion on anyone to donate.

Division bench of Justice SB Shukre and Justice AS Kilor of the Nagpur bench noted that if any person has any doubt about the application of the money, he/she intends to donate to the said fund, they may be reminded of the words of Falstaff, a cowardly character in William Shakespeare's play Henry IV, "The better part of Valour is Discretion; in the which better part, I have saved my life".

Referring to the above lines, Court said-

"Here "life" can be taken to be "money". So, such a person would well be within his right to not donate his money to the fund. From this perspective also no insistence can be made by a person donating his money in his discretion upon making public disclosures of utilization of the fund money on a public platform bypassing the proper platform provided under the Trust Act applicable to a charitable trust like the "PM CARES Fund"."

The petitioner made it clear in the petition that he does not challenge and dispute the creation of the PM CARES Fund on any ground, constitutional or otherwise but, he is only concerned about what he considers to be the 'presence of an element of seclusion in the fund in its functional and operational dynamics.'

Moreover, Adv Waghmare, who appeared in person, submitted that as a citizen of India as well as a small donor to the PM CARES Fund, he has every right to know exact position of the account of the fund and as to why all the trustees on the Board of Trustees as per the scheme of the fund have not been nominated by the Chairperson of the fund.

Waghmare contended that nomination of all the trustees on the Board is essential for the fund to operate equitably, and fairly, in the interest of welfare of the beneficiaries for whose assistance the fund has been set up. Moreover, the members to be appointed on the Board of Trustees must also include two persons of eminence belonging to opposite political parties, which provision, not expressly made in the scheme of the fund, needs to be incorporated, the petitioner submitted.

Whereas, ASG Anil Singh appeared on behalf of PM Cares Fund and Union of India. He submitted that as few more petitions involving more or less similar issues were pending adjudication before the Supreme Court and he sought to incorporate in the reply, the decisions of the Apex Court, one of which came recently in Center for Public Interest Litigation V/s. Union of India, decided on August 18, 2020.

Moreover, ASG Singh told the Court that copies of all the decisions which, in his opinion, would render assistance to this Court, have already been filed on record by him. These decisions are in the following cases-

Shashwat Anand and others V/s. Union of India and others, Manohar Lal Sharma V/s. Narender and others and Center for Public Interest Litigation V/s. Union of India.

To this, the bench said-

"Considering the fact that copies of the orders and judgments rendered by the Hon'ble Supreme Court of India now have been filed on record and also that learned A.S.G.I. through his oral submissions made elaborately has adequately assisted us, we no longer experience any handicap in finally deciding the petition on merits, even without formal reply filed on behalf of the Union of India."

Calling it a publicity interest litigation with underlying political agenda, ASG Singh urged that the said PIL is not maintainable. Improper intention of the petitioner can be gauged from the fact that just in order to make a show of the petitioner having locus standi in the matter, the petitioner paid donation of Rs.1,001 by cheque dated May 8 and immediately on the next day of May 9, 2020 the petitioner filed this public interest litigation petition, Singh told the Court.

According to him, the petitioner has no locus standi for the reason that he is a donor to the fund and not the beneficiary of the fund and that it is the beneficiary of the fund who could be said to be a person aggrieved if any action or inaction on the part of the Trustees is considered by him as against law, object of the Trust or welfare of the beneficiaries.

In response to questions raised about the intent of the petitioner and his locus standi raised by ASG Singh, the bench said-

"We are, however, of the view that it is not necessary for us to go into these aspects of the matter for two reasons. Firstly, there is hardly any material placed on record to discern the improper intention on the part of the petitioner in person and though the petition has been filed just on the next day of the petitioner remitting the donation of Rs.1,001/- through cheque, this fact by itself would not be sufficient to attribute any ill-motive to the petitioner. Secondly, this petition raises such questions as would deserve their consideration and resolution more on merits of the matter rather than on some preliminaries relating to the standing and intention of the petitioner in person."

Thereafter, Court examined the four distinct reliefs claimed by the petitioner-

i Issue appropriate directions to the respondents to immediately appoint-nominate other three trustees for the "PM CARES FUND"

ii. Further appropriate directions be issued to the respondents to appoint-nominate at least two trustees (Out of 3) from the opposition parties from Lok Sabha and Rajya Sabha

iii. By appropriate order and or directions quash and set aside/cancel the unilateral decision taken by the respondent no.1 to 5 (without there being full Board of Trustees) to appoint M/s SARC Associates, Chartered Accountants, New Delhi as auditor for PM Cares Fund

iv. Further issue appropriate directions to immediately make public the entire funds received as on date, whether domestically or from overseas i.e from NRI's and foreign nationals on the official websites of the "PM Cares Fund"

After perusing through the judgments of the Supreme Court, the bench noted-

"We find that even though the power has been conferred upon the Hon'ble Chairperson to nominate three trustees, the power is of enabling nature only making it possible for the Authority to nominate three trustees to the Board, and that there is no further mandate that the power must also be exercised in order to fully constitute the Board of Trustees. No other provision has been brought to our notice by the petitioner in person to show that without the presence of three nominated eminent persons on the Board, the Board of Trustees would be incomplete or non-functional."

Therefore, the first relief was rejected and referring to the apex court's judgment in Center for Public Interest Litigation V/s. Union of India, the bench noted-

"It is clear that PM CARE Fund is a charitable trust registered under the Registration Act, 1908 and that it does not receive any budgetary support or any government money.

If there is no provision made in the Trust Deed for inducting some members of the opposition political parties into Board of Trustees by nomination, and there is also no such requirement of law, which is the case here without any dispute, there is no way that an outsider like the petitioner in person would knock at the doors of this Court to invoke the extraordinary jurisdiction of this Court to seek the direction to the trust to amend its Trust Deed. The direction sought in the second prayer clause is really a command for amending the Trust Deed which cannot be initiated at the behest of a person stranger to the Trust like the petitioner in person in a public interest litigation, much less by invoking extraordinary writ jurisdiction of this Court under Article 226 of the Constitution."

Finally, addressing the relief sought for public declaration of funds received, Court said-

"In this petition, the question involved is really not about the nondisclosure of receipts and disbursements but it is about ensuring that the receipts into the fund are from proper sources and the outgoings from the fund are consistent with the objects of the fund for which purpose public disclosure is essential. In other words, the real question is- why the public disclosure rather than why not the public disclosure? There can be no two opinions about the underlying object of public disclosure. It is to ensure proper utilization of the fund money sourced from proper persons."

Thus, dismissing the PIL and rejecting all reliefs, Court warned against misuse of PILs and casually entertaining such litigation.

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