It said the PM CARES is a body owned or controlled by the appropriate

government as its trustees include the Prime Minister, ministers of defence, home
affairs and finance. https://thewire.in/law/plea-to-declare-pm-cares-fund-a-public-authority-
under-rti-not-maintainable-pmo-to-delhi-hc

The petition also submitted that "Anybody that is "owned", "controlled" or

"substantially financed" by the Government qualifies for a public authority under the
RTI Act.." The petitioner also insisted that the patients who have fallen victim to
COVID-19 have the right to know about the fund collected for the very purpose of
fighting the virus. It also maintained that the patients who need immediate financial
assistance to fight the virus, "are not in a position to enforce their fundamental right of
being treated and financially supported, by the use of funds collected in the PM
CARES fund." The petitioner had also expressed apprehension that if the details of
PM Cares Fund are not divulged or disclosed, it gives reasons for suspicions. The
petitioner also raised concern as to why should there be any secrecy, as the website
also states that persons who manage PM Cares Fund shall have no personal interest.
These donations have largely come from the Public Sector Undertakings, Central
Ministries, salaries of armed forces personnel, civil servants and members of the
judicial entities. These funds have been compulsorily donated into the PM Cares
Fund, it stated.https://zeenews.india.com/india/delhi-high-court-rejects-plea-to-bring-pm-
cares-fund-under-rti-act-2289092.html

"The reluctance of the trustees of the fund in divulging information as to the management
of the fund raises a profoundly serious apprehension since the fund has been set up to
fight Covid-19 which is a public cause. It is further unfathomable as to why such secrecy
is desired when the website of the fund clearly states that all persons engaged in the
management of the fund are working on a pro bono capacity and shall have no personal
interest in the fund," the plea added. It said transparency is the bedrock of rule of law and
the opaqueness smells of ulterior motives or at least is indicative of feudal mindset and
hawkish attitude, which is opposed to being fair, just and reasonable in public dealings.
“Every victim of Covid-19 is interested in and has a right to know as to how much fund
has been collected and how the same is being expended or is planned to be expended."
 https://www.livemint.com/news/india/plea-in-delhi-hc-seeks-direction-to-pm-cares-fund-to-
divulge-details-under-rti-11591268434164.html

Speaking to The Leaflet, the RTI applicant said, ” I believe PM CARES

Fund is ‘public authority’ under the Act. As per the Act, a body is a public authority, if
an appropriate Government exercises substantive ‘control’ over it. By denying PM
CARES fund the status of ‘public authority’, it is only reasonable to infer that it is not
controlled by the Government. If that is the case, who is controlling it? The name,
composition of the trust, control, usage of emblem, government domain name
everything signifies that it is a public authority. By simply ruling that it’s not a public
authority and denying the application of RTI Act, the Government has constructed
walls of secrecy around it. “https://theleaflet.in/pm-cares-fund-is-not-a-public-authority-
under-rti-says-pmo/https://theleaflet.in/pm-cares-fund-is-not-a-public-authority-under-rti-
says-pmo/

"Sunlight is the best disinfectant", United States Supreme Court judge,

Justice Louis Brandeis said in respect of open government. Judges of the
Supreme Court of India have cited the quote to advocate transparent and
accountable governance. the decision of Delhi High Court in National Stock
Exchange of India Limited v. Central Information Commission is noteworthy,
wherein the Court held that the three conditions - owned,
controlled, and substantially financed, are distinct. Even if one of the three
is satisfied by a body, it would be sufficient to declare it a public authority.
Even if we consider the meaning of "controlled" as interpreted by the Supreme Court, the PM Cares
fund would be a public authority because of the deep and substantial control exercised by the
government over the Fund. Following are the few inclusive points that support my proposition:

1. The Prime Minister heads the PM Cares Fund as ex-officio Chairperson of the Board of Trustees
along with the Minister of Defence, the Minister of Home Affairs and the Minister of Finance as an
ex-officio member of the trustee. Persons associated with the trust are constitutional functionaries and
hence it gives an impression of public office.
2. The Prime Minister, in his capacity as Chairperson, is authorised to nominate three trustees to the
Board of Trustees who shall be eminent persons in the field of research, health, science, social work,
law, public administration and philanthropy.
3. The Chairperson and members of the Board of Trustees are constitutional functionaries and are
holding a public office. They exercise sole discretion as to the affairs and management of the trust,
including disbursement of the Fund.
4. Advertisements seeking contributions to the PM Cares Fund have been made by government agencies
from their budgetary allocation.
5. The Prime Minister's office has made an appeal to the public for the contribution to the Fund through
media. Furthermore, the PM's pictorial representation has been used in government advertisements
making appeals for contribution.
6. Use of the State Emblem of India on the official website of PM Cares Fund website and its logo gives
an impression of a public office. Use of State Emblem is explicitly prohibited under The State
Emblem Act, 2005 unless its use by any authority is notified by the government under this Act.
7. Gov.in is the official domain of the PM Cares website. The use of this domain is regulated under
the Ministry of Electronics and Information Technology guidelines framed for the purpose of
allocating the domain gov.in

The aforesaid points suggest a deep and substantial control by the government. Therefore, the PM
Cares Fund is a public authority under the meaning of the RTI Act.

In DAV College Trust v. Director of Public Instruction, the Supreme Court

relying upon Thalappalam, held that “substantial” under the RTI Act means
a large or considerable value. It does not necessarily have to mean majority
or dominant. In the PMNRF Case, the High Court gave a split verdict. Justice
Bhat was of the view that the action of the Prime Minister inviting
contributions and setting up a Committee comprising himself along with
the Deputy Prime Minister, Finance Minister and other important state
functionaries qualifies as an order made by the appropriate government.
Therefore, PMNRF must be deemed to be a ‘public authority’ under the RTI
Act.
When a particular word in an Act admits two meanings or is vague, the court takes the reference of
the objective and reasons of the Act to find out the true intent behind the word. I believe that the
Supreme Court took a very broad meaning of "control" in Thalappalam, defeating the objective of the
RTI Act. Justice Bhat in Bhagat Singh v. CIC has brilliantly noted the underlying idea behind the RTI
Act.

“14. A rights-based enactment is akin to a welfare measure, like the Act, should receive a liberal
interpretation…Therefore, the meaning of the words has to be construed in their terms. Adopting a
different approach would result in narrowing the rights and approving a judicially mandated class of
restriction on the rights under the Act, which is unwarranted.”

Transparency enhances the credibility of any institution. The absence of a clear objective and
rationale behind the creation of the PM Cares fund, when PMNRF has been in existence since 1948,
cast doubts over the newly created body. The public character of the fund demands PMO to disclose
the trust deed and other relevant information in compliance with suo motu disclosure under the RTI
Act. This disclosure would instill a sense of trust in the public and allay the fears of lack of
transparency.

https://www.barandbench.com/apprentice-lawyer/pm-cares-fund-a-public-authority-under-
the-rti-act-2005

The information to which RTI Act applies falls into two categories, namely, (i) information
which promotes transparency and accountability in the working of every public authority,
disclosure of which helps in containing or discouraging corruption, enumerated in Clauses (b)
and (c) of Section 4(1) of RTI Act; and (ii) other information held by public authorities not
falling under Section 4(1)(b) and (c) of RTI Act. In regard to information falling under the
first category, the public authorities owe a duty to disseminate the information widely suo
moto to the public so as to make it easily accessible to the public.

The Institute of Chartered Accountants of India vs. Shaunak H. Satya and Ors. (02.09.2011 -
SC) : MANU/SC/1006/2011

11. Similarly the High Court of Delhi in the case of National Stock Exchange v. CIC - W.P.
(C) No. 4748 of 2007 decided on 15-4-2010 had also observed that clause (i) and (ii) of
Section 2(h)(d) were distinct from clause (a) to (d) of Section 2(h). The relevant extract of the
decision is as under:"The three conditions, i.e., owned, controlled, substantially financed are
distinct in alternative and not cumulative. The nature and type of activity and functions
undertaken by the organisation are inconsequential and immaterial. If a body satisfies
requirements of Clause (i) or (ii), conditions (a) to (d) need not be satisfied. Thus, when
second part of Section 2(h) applies, satisfaction of conditions mentioned in (a) to (d) need not
be examined."

Venkatesh Nayak vs. CPIO and DCIT (OSD), (Inv. 1), Ministry of Finance, Department of
Revenue, Central Board of Direct Taxes and Ors. (10.10.2017 - CIC) : MANU/CI/0658/2017

In 2011, the Punjab-Haryana High Court[1] while deciding on 24 civil writ petitions against the
Central/State Information Commissioners had held that if any person, or body, satisfies the following
conditions then it would "squarely fall within the ambit and scope of definition of 'public authorities'"
and would be "legally required to impart the indicated information as envisaged under the RTI Act" -

(i) the institution cannot come into existence and function unless registered and regulated by the
provisions of a legislation; or

(ii) the State Government has some degree of control over it through the medium of Acts/Rules; or

(iii) it is substantially financed by means of funds provided directly, or indirectly, by the appropriate
Government; or

(iv) the mandate and command of the provisions of the RTI Act along with its Preamble, aims, objects
and regime extends to their public dealing; or
(v) the larger public interest and totality of the other facts and circumstances emanating from the
records suggest that such information may be disclosed.

The Court was further inclined to believe that arguments to the contrary would "nullify the aims and
objects of the RTI Act, perpetuating and inculcating the injustice to the larger public interest in
general."

In a verdict that has remained prominent for over half-a-decade now, the CIC had alluded to the
judgment of the Madras High Court in Tamil Nadu Newsprint & Papers Ltd v. State Information
Commission. In this case, the court had observed that since the mere requirement of the RTI Act for an
institution to be deemed a "public authority" is that the Government must substantially finance it, and
exercise control over its affairs, it is not necessary that the Government must be
the majority shareholder in that institution. The Court had further gone ahead to make an observation
that whether or not the government exercises such control is immaterial.

The easiest way to establish that the IPR Think Tank would qualify as a "public authority" under the
RTI Act would be to show that it is a body owned, controlled or substantially funded directly or
indirectly by the Government, or that it is created either by any other law made by the Parliament or
State Legislature, or under the Constitution itself.

Moreover, it appears from The Hindu Urban Cooperative Bank Limited v. The State Information
Commission[21] that when discharging public functions, even though a private entity does not
become a State per se, considering the public interest involved, it must be deemed to be a "public
authority" in a bid to avoid diluting the aims and objectives of the RTI Act.

In addition, the underlying principle used in Indubala Agarwal v. National Commodity and

Derivatives Exchange Ltd. [22] was that while the public bodies engaging in commercial or business
activities - often, even profitable - that are created by any government in exercise of its sovereign
functions would qualify as "public authorities" as per Section 2(h) of the Act, the set of commercial
bodies further created by these public bodies as part of their business ventures would not qualify as
"public authorities" as per Section 2(h). 

On a different but related note, in the well-known case of Ajay Hasia v. Khalid Mujib
Sehravardi [23], the test laid down for a "public body" was whether a said person, or body, is an
instrumentality or agency of the State, and not as to how it was brought into existence, i.e., the idea is
to find out why it was created, and not how.

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