12 July 2022 10:15 AM GMT
The Delhi High Court on Tuesday directed the Centre to file a detailed and exhaustive reply in a plea seeking a declaration that PM CARES Fund is "State" under Article 12 of the Constitution, adding that it was an important issue requiring a proper response. A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad also expressed displeasure over a one...
The Delhi High Court on Tuesday directed the Centre to file a detailed and exhaustive reply in a plea seeking a declaration that PM CARES Fund is "State" under Article 12 of the Constitution, adding that it was an important issue requiring a proper response.
A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad also expressed displeasure over a one page affidavit earlier filed on behalf of the PM-CARES Fund Trust in the matter, remarking that the same wasn't detailed enough to justify the concerns raised in the petition.
The affidavit filed by the Under Secretary at Prime Minister's Office had stated that there is no control of either the Central Government or the State Government in the functioning of the PM CARES Trust.
"This is such an important issue and only one page affidavit filed. There is not even a whisper about anything in this reply," the Bench said.
It added "File a proper reply. The issue isn't that simple. We need an exhaustive reply."
Accordingly, the Court granted four weeks time to the Centre for filing a detailed reply in the matter
"We will have to pass a detailed order on each and every point raised," the Court orally remarked.
The matter will now be heard on September 16.
Senior Advocate Shyam Divan, arguing for PIL petitioner Samyak Gangwal, submitted that the Fund is nothing but State within the meaning of Constitution of India and that any fund created by constitutional functionaries cannot be contracted out of the Constitution of India. "You may create a structure but you cannot claim immunity from the constitution," Divan argued.
He added that if the Prime Minister wishes to settle an institution, he may do so, however, the same has to be within the umbrella of the State.
Divan also argued that the Fund is destructive of good governance and may lead to many problems in the future.
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.
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