PM Cares, Do We?

By Narasimhan Vijayaraghavan

Prime Minister Narendra Damodardas Modi famously said: “na khaungaa, na khaane doonga (neither will I indulge in corruption, nor allow anyone else to indulge in it)”. And his electoral pledge was: “If the poor would have not got the right to vote, then I would not have become the ‘Pradhan Sewak’ to serve the people.” Put the two together and you have the magical potion of PM-CARES, said a commentator.

Alas, we see politics in anything and everything. We live in such polarised times. Marcus Aurelius told us to “sift and see”. We have lost the “art of good and bad in everything as we indulge in cacophonous ideological food fights”, Harvard Prof Michael Sandel said.

We had the inevitable challenge, their staple diet, from The Centre for Public Interest Litigation, which moved the Supreme Court against PM-CARES. It faced three posers:

• whether the Union government was under any obligation to utilise the National Disaster Relief Fund (NDRF) for tackling Covid-19.
• whether all donations should be to the NDRF instead of the PM-CARES fund.
• whether the amount already in the PM-CARES fund should be transferred to the NDRF.

The Court responded in the negative to all of them. Its reasoning was based on two broad points: first, the two funds have different stated objectives; second, their form and structure are also different. On the first point, the Court noted that the calamities covered under the NDRF are as follows: “cyclone, drought, earthquake, fire, flood, tsunami, hailstorm, landslide, avalanche, cloud burst, and pest attack considered to be of a severe nature” by the government to justify supplementing a state government’s State Disaster Relief Fund resources. The PM-CARES Fund, on the other hand, refers to a “public health emergency”.

Additionally, the Court stressed that the NDRF made no specific provision for biological calamities or public health emergencies. It could only be used for these purposes, if the Union government issued a notification to this effect.
 
On the second point, the Court noted that the NDRF is a statutorily constituted fund which requires oversight by the CAG. In contrast, the PM-CARES Fund is a public charitable trust which consists of voluntary contributions from individuals and organisations rather than containing any public funds. Therefore, it does not need to be audited by the CAG, and can instead be audited by a private accountant.
 
Based on these two separate considerations, the Court came to its conclusion: given the gravity of the Covid-19 situation in India, and the fact that the NDRF did not explicitly cover biological or public health emergencies, the Union government had the prerogative to create a fund containing the necessary financial resources to handle the current situation. The apex court went so far as to hold that it was not for a petitioner to question or for the Court to sit in judgment upon financial decisions made by the Union government.

Matters did not end there. This is India. And Modi has too much traction. The Delhi High Court is now seized of a mutation of the earlier PIL variant seeking to declare PM-CARES as “State” or “Authority”within the meaning of Article 12 of the Constitution of India and a “Public Authority” amenable to the Right to Information Act.

PM-CARES Fund, a charitable trust under the law, told the Delhi High Court that the trust’s fund is not a fund of the Government of India and its amount does not go into 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,” Pradeep Kumar Srivastava, an under secretary in the Prime Minister’s Office (PMO) said in a reply.

Srivastava told the Court that he functions on an honorary basis and that the trust functions with transparency and its funds are audited by a chartered accountant from the panel prepared by the CAG. “To ensure transparency, the audited report is put on the official website of the trust along with the details of utilisation of funds received by the trust,” the reply said. It said all donations received by the trust are through online payments, cheques or demand drafts. The amount received is audited and the expenditure of the trust fund displayed on the website.

“In view of the specific provisions of Section 8 of the Right to Information Act, the relief against para 5.3 of the trust deed dated 27.3.2020 pales into insignificance,” Srivastava said, referring to a prayer against a paragraph in the trust deed which states that it was not created by or under the Constitution or by any law made by Parliament or state assembly.

What of these PILs? Harish Salve, Senior Advocate, Supreme Court, scathingly wrote on the “Rise and Fall of the PIL”. With time, the growth of this kind of intervention by the court gave birth to organisations whose objective was to file PILs to champion public causes. As the intervention of the courts increased, PILs increasingly became a vehicle for “eminent” members of civil society to clothe their point of view in a constitutional garb and seek its enforcement as enforcement of pseudo-constitutional rights.

And now read this: “The dividing line between the judicial activism and judicial overreach is a thin one. A takeover of the functions of another organ may, at times, become a case of over-reach.” And that was the “mild mannered Manmohan Singh”, as Lutyens’ media would portray him.

In August 2010, the Supreme Court directed the government to distribute foodgrains to the hungry as a measure to overcome the storage problem. “The foodgrains are rotting. You can look after your own people. As a part of short-term measure, distribute it to the hungry for free,” the Court had observed. Then Minister for Agriculture Sharad Pawar said that it may not be possible for the government to distribute it free. And he subtly hinted that “it was a policy decision and the executive was not unaware, irresponsible or unresponsive”.

One was reminded of such, not so anecdotal instances, from our top court. It is true that our Supreme Court is the “most powerful institution in the world including suo motu initiation powers. And in comparison the US Supreme Court was a toothless tiger” as the late Justice Antonin Scalia lamented.

PM-CARES Fund comprises voluntary donations by individuals and institutions and is not a part of business or function of the central government in any manner. We are unwilling to accept what the PM-CARES says it is all about. Instead of supporting a noble initiative, we always suspect the worst. And the suspects are the usual ones. And even the media is divided along political lines. Editorials are run that there must be open, transparent transactions and credible scrutiny. Exactly what the PM-CARES offers.

Do we care to listen? No, we don’t trust it, for we are like that only. Even before they get going, we are unwilling to wait to see and hurriedly seek the intervention of courts as if they are “the repository of all wisdom, which they are not”, as Justice V Parthiban, Madras High Court, admitted in a different context.

Let us leave the courts to handle the 3.64 crores cases, as on date. Pendency Pandemic is a menacing virus. Even if we do not have an efficacious vaccine, let us not add to the multiple variants, with such challenges. It belongs to the executive domain. There are checks and balances of a different kind available. Judicial forays may not be among them. Or so I believe.

PM must care for us, We The People. We elected him to be our prime sevak. PM-CARES seems to be a tool to serve our cause.The office of the PM is a constitutional institution. PM-CARES runs in his name. Any legal construct needs to be accountable and even the affidavit of the PMO concedes that it may be a “State” or “Authority” amenable to judicial review and possibly a “Public Authority” too, to share “information”. But to strangulate it with doubting/doubtful challenges may be to tap into judicial activism too far. Judiciary has enough to care alreadyon its plate. Whether PM-CARES or not, We the People may have to CARE!

—The writer is author of “Constitution and its Working –Musings, Anecdotes and Episodes” OakBridge,2021, and a practising advocate in the Madras High Court

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