PM Cares Trust Comprise Constitutional Functionaries, Can't Run A Private Show: Sr Adv Shyam Divan Argues In Delhi High Court

Senior Advocate Shyam Divan today told the Delhi High Court that the Prime Minister and various Ministers of the cabinet, being constitutional functionaries, cannot be allowed to run a "private show" in the name of PM CARES Fund.

The development comes in the plea seeking declaration that the Fund is "State" under Article 12 of the Constitution. This comes after the Prime Minister's Office(PMO) refused to divulge information about the Fund under the Right to Information Act, 2005.

Divan, arguing for PIL petitioner Samyak Gangwal, submitted,

"The primary question is, can the Constitutional functionaries form a pool and decide that it will function outside the scope of the Constitution? The Fund is very very closely inter-linked with the Prime Minister of India. Its Board of Trustees also includes the Minister of Defence, the Home Minister and the Minister of Finance, all in their ex-officio capacity."

He argued that the moment the word "ex-officio" comes into picture, it means "by virtue of the office". Hence, how can they enter into a parallel system to which rigour of state does not apply, Divan asked the Bench comprising Acting Chief Justice Vipin Sanghi and Justice Navin Chawla.

"Can you contract out of the Constitution? As long as you are ex-officio, the Constitution will drag you. You are ex-officio, you are taking oath of office and your allegiance is to the Constitution."

At this juncture, the Bench inquired if it is his submission that this kind of a Trust could not have been set up. To this, Divan responded,

"Trust can be set up. But is it a State? Yes, undisputedly. And all rigours of Constitution ought to apply here. Trust can be set up but it would be within notion of State. You can't contract out. Today it's a Trust, tomorrow it may be a Private Company!"

Justice Chawla then asked Divan if the High Court's writ jurisdiction under Article 226 of the Constitution can be exercised in vacuum, merely give a declaration that a body is private or not.

"We can understand if this question arose in a cause of action. But Article 226 is not meant to be exercised in vacuum."

However, Divan responded that the provision does contemplate such a scenario. In this regard, he referred to the case of KK Kochuni case, AIR 1959 SC 725, where the Supreme Court observed that powers under writ jurisdiction are wide enough to make even a declaratory order where that is the proper relief to be given to the aggrieved party.

Divan submitted that in case, the matter pertains to a relief sought by the Petitioner under the Right to Information Act, 2015, vis-a-vis details of the fund.

He added,

"The main issue is of public accountability. Good governance and open government is essential to Rule of law and preservation of constitutional democracy. We can't have these situations where 3,100 crore are collected and it is not known from whom, which corporate? Transparency to constitutional fabric is extremely important."

The Bench will continue the hearing on July 12, on which the Centre is likely to make its arguments, including on the issue of locus and maintainability of the petition. 

About the Case

The Petitioner seeks declaration of the PM CARES Fund as a State. This he said, would attract consequential directions for: (i) disclosing the Fund's audit reports periodically; (ii) disclosing the Fund's quarterly details of donations received, utilization thereof and resolutions on expenditure of donations.

In the alternative it is contended that in case PM CARES Fund is not a State under Article 12, then: (i) Centre should widely publicize that PM CARES is not a Government owned fund; (ii) PM CARES Fund should be restrained from using "PM" in its names/ website; (iii) PM CARES Fund should be restrained from using the State Emblem; (iv) PM CARES Fund should be restrained from using the domain name "gov" in its website; (v) PM CARES Fund should be restrained from using PM's Office as its official address; (vi) Centre should not extend any Secretarial Support to the Fund.

The PM CARES Fund on the other hand has objected to maintainability of the petition, stating that alternative statutory remedies are available to the Petitioner under the RTI Act, 2005.

On merits, the Fund reiterates that it is not "public authority" within the meaning of Section 2(h) of the RTI Act inasmuch as the mandatory statutory requirements of the provision are not in existence. "There is no control of either the Central Government or any State Government/s, either direct or indirect, in functioning of the Trust in any manner whatsoever," the Fund claims. 

No Control Of Central Or State Govts In Functioning Of PM CARES Funds Trust : PMO Tells Delhi High Court

It is further claimed that the Trust functions with transparency and its funds are audited by an auditor who is a Chartered Accountant drawn from the panel prepared by the Comptroller and Auditor General of India.

Significantly, the Supreme Court previously observed that there is no occasion for audit of PM CARES Fund by the Comptroller & Auditor General of India as it is a public charitable trust.

Case Title: Samayak Gangwal v. CPIO, PMO