On Tuesday, the Delhi High Court was baffled by the Union government’s “one-page” reply arguing that the PM CARES Fund is a “Trust” rather than a “State”.
The reply submitted by the Centre in the petition last year, was rejected by a bench comprising Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, who said that it was “not so simple” and an “important issue”.
The HC postponed the case till September 16, and ordered the Union government to provide a thorough and comprehensive response to the request.
“You have filed a reply in the case. One page to such an important issue? It is only a one-page reply. The affidavit of one Pradeep Kumar Srivastava (Under Secretary, Prime Minister’s Office). Nothing beyond that? Such an important issue and a one-page reply are there. Whatever the learned senior (for petitioner) is arguing, there is not even a whisper about it in the reply,” emphasised the presiding judges in an address to Solicitor General Tushar Mehta, according to the Indian Express.
Directing the authorities to file “a detailed and exhaustive reply” within four weeks, the court listed the matter for hearing on September 16. The court said, “You file a proper reply. The issue is not that simple. We need an exhaustive reply. Learned SG, let a proper reply be there because this matter will also travel to the apex court.” It continued, “We will have to pass an order on each and every point raised.”
Samyak Gangwal filed the petition, alleging that citizens of the country are aggrieved that a fund set up by the prime minister and with trustees like the PM and the ministers of Home, Defence, and Finance, has been declared a fund without government control.
Last year, the PM CARES Fund, reportedly a charitable trust under Indian law, responded to the case by stating that its fund is not a government fund, and it does not form part of the Consolidated Fund of India.
“Irrespective of whether the Trust is a ‘State’ or other authority within the meaning of Article 12 of the Constitution of India and or whether it is a ‘public authority’ within the meaning of section 2[h] of Right to Information Act, Section 8 in general and that of provisions contained in sub section [e] and [j], in particular, of the Right to Information Act, it is not permissible to disclose third party information,” said Pradeep Kumar Srivastava, the Under Secretary at the PMO, in the reply.
When hearing arguments from the petitioner’s counsel, Senior Advocate Shyam Divan, the court questioned the response’s inadequacy. In his response, Divan noted the mistakes in the PMO’s response, stating that the Centre had not even filed a reply. “I, Pradeep Kumar Srivastava … working as Under Secretary at Prime Ministers do solemnly swear ….,” he read from the official response.
“Is this how Delhi HC is meant to be treated? They don’t even read it,” asked Divan, to which SG Mehta responded that it was a typographical error. Chief Justice Sharma said, “I have seen it, that is why I feel a proper and exhaustive reply is required.”
Advocate Divan has earlier said that public officers are trustees of PM CARES, and that it cannot “contract out” of the Constitution. He argued: “Can you in a state have a collector, a sub-divisional magistrate and other government officers set up a trust and say that it is all now going to be outside the government control? I don’t believe so. Can you have a state Chief Minister do this and say that other senior ministers and I are going to form a trust but this has nothing to do with the State?”
According to Divan, such a structure has a negative impact on good governance. He warned that in the future, if these kinds of structures and opacities are allowed to exist in our system, they will cause enormous problems.
According to the petition by Gangwal, the PM CARES Fund was established in March 2020, with the noble goal of providing assistance to the public in the wake of the COVID pandemic, and it has since received sizable donations. However, the plea adds that a copy of the Trust Deed, which states that it was not established by or pursuant to the Indian Constitution or any law passed by the Parliament or any State Legislature, was made public by the PM CARES Fund in December 2020 on its website.
“It is unimaginable that a Fund, a) which has been set up by the Prime Minister of India, (b) where Trustees are the Prime Minister, Defence Minister, Home Minister and the Finance Minister of India, and (c) which has its office at Prime Minister’s Office South Block, New Delhi-110011 has been declared to be a fund over which there is no Government Control,” argues the petition.
Furthermore, it highlights that the Constitution does not permit a circumstance in which any member of the Executive holding a public position can create a Trust that is portrayed as a Fund established by the Government, but in reality does not have any Government authority whatsoever.