NEW DELHI—In an internal note, the Narendra Modi government’s Ministry of Corporate Affairs described the Prime Minister’s Relief Fund (PMNRF) as a “central government fund” to confirm that it could receive money set aside by companies to fulfill their corporate social responsibility obligations.
But in the Delhi High Court, the PMNRF described itself as a “private fund” that is “divested of any government character” and “not a business of the Central Government” to justify refusing to share information about the fund’s finances under the Right to Information (RTI) act, according to a review of official documents accessed by HuffPost India.
Given that a Joint Secretary rank official in the Prime Minister’s Office (PMO) administers the PMNRF in an honorary capacity as its Secretary, after being appointed by the Prime Minister, the submissions made in the High Court by the fund’s lawyers were, for all practical purposes, on behalf of the PMO.
What’s notable here is that the Modi government’s contradictory stand on the PMNRF is strikingly similar to its contrasting position about the PM CARES fund. Because in the case of PM CARES, too, the corporate affairs ministry explicitly wrote in an official communication that the PM CARES is set up by the central government and thus eligible for receiving corporate social responsibility funds. But in the Supreme Court, the Modi government argued and the court agreed, that the PM CARES is a ‘public charitable trust’ to avoid scrutiny of its finances by the Comptroller and Auditor General.
Significantly, this previously undisclosed internal note of the corporate affairs ministry, read together with the PMNRF’s submissions in high court, points towards the means used by the Narendra Modi government to ensure that both PM CARES and PMNRF remain eligible for receiving corporate social responsibility funds while also keeping them out of the purview of the RTI Act— thereby ensuring secrecy about its donors as well as beneficiaries.
“This previously undisclosed internal note of the corporate affairs ministry, read together with the PMNRF's submissions in high court, points towards the means used by the Narendra Modi government to ensure that both PM CARES and PMNRF remain eligible for receiving corporate social responsibility funds while also keeping them out of the purview of the RTI Act.”
On PMNRF, as HuffPost India has previously reported, a two judge bench of the Delhi High Court could not agree on the validity of the government’s stand. In May 2018, Justice S. Ravindra Bhat and Justice Sunil Gaur asked the Acting Chief Justice Gita Mittal to appoint a third judge to decide the matter. Since the publication of that report in April, the case never came for consideration before a third judge so it remains undecided.
“There is no transparency. Citizens have the legitimate right to know, where and for what purpose funds are being utilised,” said Aseem Takyar, a transparency activist whose RTI application snowballed into the PMNRF case in the High Court.
In 2012, Takyar filed an RTI application seeking details about the donors and beneficiaries to the PMNRF from 2009 till 2011. The Prime Minister’s Office under Manmohan Singh refused, on the grounds that sharing the information threatened the privacy of the fund’s donors and beneficiaries. It used this same argument even in the Central Information Commission to prevent disclosure of information. But a year later, in August 2013, the previous government also made the fund legally eligible to receive Corporate Social Responsibility funds for the first time by amending the Companies Act.
When Narendra Modi took over as Prime Minister in 2014, the PMNRF continued to cite privacy as a reason to deny information, but also added another ground for this denial to state that the PMNRF is not a public authority as defined under section 2(h) of the transparency law and need not provide any information to applicants.
Section 2(h) of the RTI Act 2005 provides a broad definition of public authorities which are legally obliged to provide information to RTI applicants. They include bodies set up by the central government.
HuffPost India has written to the Corporate Affairs secretary Rajesh Verma to understand why his ministry’s internal note describe the PMNRF as a ‘central government fund’. This report will be updated if he responds.
THE INTERNAL NOTE
When Prime Minister Narendra Modi’s Advisor Bhaskar Khulbe wrote to the Ministry of Corporate Affairs on May 12 2020 regarding the PM CARES fund, Deputy Director Aparna Mudiam of the Ministry of Corporate Affairs prepared an explanatory note for senior officials in her ministry the same day.
HuffPost India has reported on the implications of Khulbe’s letter here.
In her note, Mudiam explained a provision of the Companies Act that allowed corporations to donate money they had set aside for corporate social responsibility to Central Government Funds. This provision falls under a part of the Act called “Schedule VII”.
“Currently, there are three Central Government Funds explicitly mentioned in the Schedule VII viz. The Prime Minister’s National Relief Fund (PMNRF), Swacch Bharat Kosh and Clean Ganga Fund,” Mudiam wrote. “While the PMNRF has been specifically mentioned in the Schedule VII since its inception, Swacch Bharat Kosh and Clean Ganga Fund were included in Schedule VII through an amendment dated 25th October, 2014 on the request of the PMO.”
Mudiam’s note clearly establishes that the PMNRF is, in fact, a central government fund.
Yet in the Delhi High Court, the Modi government, via the PMNRF, took the opposite stand.
As the order dated 23 May 2018 notes, “...the Fund contends that PMNRF is a private fund comprising of voluntary donations made by individuals and institutions and is not a business of the Central Government. Therefore no right to information can be enforced against it. The Fund further contends that PMNRF does not owe its establishment to an order of the government and does not receive any funds or finances by the government, thus, it is not a public authority under Section 2(h) of the RTI Act.”
The fund also argued further that, the “...PMNRF is divested of any government character as no guideline can be laid down for disbursement of amount from PMNRF, as it is not a part of any Government Scheme or business of the Central Government and also not subject to audit of Comptroller and Auditor General of India (CAG). All these points make PMNRF fall outside the scope of public authority‟ as defined under Section 2(h) of the RTI Act.”
As mentioned earlier in this report, the two judges of the High Court could not ultimately come to an unanimous decision and a third judge appears to have not taken up the matter yet.
The central question of transparency about funds collected in the name of the Prime Minister of India still remains unresolved even as the Modi government continues its contradictory stance about the PMNRF as well as PM CARES.