The tale of PM Cares Fund, since its inception, has been controversial though the Union government claims it to be sacrosanct. The funding channel has seemingly been running with a preamble of hating transparency and that it is being fortressed that no one can avail information unless its commander desires to divulge the information. The fashion that it functions raises a slew of questions that why the fund can't be made constitutional and what stops it from vowing to be transparent. The fund is settling down to a rhetorical mode by reiterating its claim of being transparent and not keeping it. 

The latest testament of why the fund is not what it says is the affirmation that it has kept to the judiciary that it can't be brought as a 'state' fund. On Thursday, the Union government has informed the Delhi High Court that the PM Cares Fund is not a Government of India fund and the amount collected by it does not go to the Consolidated Fund of India. An affidavit filed by Pradeep Kumar Srivastava, the undersecretary to the Prime Minister's Office who is discharging his functions in the PM Cares Trust, has reiterated that the trust functions with transparency and its funds are audited by a chartered accountant from the panel prepared by the Comptroller and Auditor General of India. 

The High Court bench comprised of Chief Justice DN Patel and Justice Amit Bansal was hearing the petition that was filed by Samyak Gangwal in which he sought a direction to declare the PM Cares Fund a 'State' fund under Article 12 of the constitution to ensure transparency in its functioning. The petitioner said that the PM Cares Fund was formed by Prime Minister Narendra Modi on March 27, 2020, to extend assistance to the citizens of India in the wake of the public health emergency- the Covid-19 pandemic. The abbreviation of CARES is Citizen Assistance and Relief in Emergency Situations Fund. 

In the affidavit, the undersecretary at Prime Minister's Office further said, "To ensure transparency, the audited report is put on the official website of the trust along with the details of utilization of funds received by the trust." "Irrespective of whether the trust is a state or other authority within the meaning of Article 12 of the Constitution or whether it is a 'public authority' within the meaning of provisions of the Right to Information Act (RTI), it is not permissible to disclose third party information", the affidavit added. 

It said that all donations received by the trust are received through online payments, cheques, or demand drafts, and the amount received is audited and the fund is displayed on the website. While the fund defines itself to assist citizens during emergencies, it was irony when the undersecretary said that the PM Cares Fund can't be declared as a state fund by claiming that it is a charitable trust not created by or under the Constitution or by any law made by the Parliament or by any state legislature. 

The affidavit further said, "The trust functions on the principles of transparency and public good in larger public interest like any other charitable trust and therefore, cannot have any objection in uploading all its resolutions on its website to ensure transparency." The undersecretary said, "Despite being an officer of the Central government, I am permitted to discharge my functions in PM Care Trust on an honorary basis." In his response, the petitioner's counsel has demanded that if the PM Cares Fund is not a 'State' fund under the constitution, it should stop the usage of India's national emblem, the Prime Minister's photograph, and the domain name 'gov'. However, after the hearing, the Delhi High Court bench had adjourned the hearing to September 27.

Can an individual or bodies use the state emblem?

According to the State Emblem of India (Prohibition of Improper Use) Act 2005, under the clause of prohibition of improper use of the emblem, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central government, or as the case may be, the state government, without the previous permission of the Central Government or of such officer of that government as may be authorized by it in this behalf. 

The clause of 'Prohibition of use of emblem for wrongful gain' of the same Act says that no person shall use the emblem for the purpose of any trade, business, calling or profession, or in the title of any patent or in any trademark or design, except in such cases and under such conditions as may be prescribed. As per this clause, a trust won't warrant a condition that it needs to be represented with the Indian Emblem and being a trust, PM Cares Fund hasn't clarified why it has used the Indian Emblem.

The paradox of trustees: 

Neither the PM Cares Fund nor the Prime Minister's Office had lent out a clear clarification on why the Prime Minister and three ministers serving as Trustees in the fund if it did not fall under a 'State' fund and under constitutional obligations and why the norms PM Cares Fund have to be amended by the Ministry of Corporate Affairs to get qualified for CSR contributions if the fund is a trust. While the roles and responsibilities of the Indian Prime Minister are carefully defined, Narendra Modi is the only Prime Minister who is also serving as a Chairperson of a trust, that is not connected with the government, while in office. 

Besides him, the three Union Ministers - Minister of Defence, Minister of Home Affairs, and Minister of Finance are serving as trustees of a trust that, as per their claim, no way related to their constitutional offices. PM Cares Fund gives full liberty to nominate three trustees to the Board who shall be eminent persons in the field of research, health, science, social work, law, public administration, and philanthropy. However, there is no clarity that all the three trustees were appointed based on this trait. 

The Central government has several times twisted the tale of PM Cares Fund as on December 24, 2020, in a reply to an RTI query, the Central government has said that PM Cares Fund is owned by, controlled by, and established by the Government of India. In the reply, the commissioner of Income Tax has said that PM Cares Fund has been registered under the Registration Act 1908 and is a body owned by, controlled by, and established by the Government of India, but it does not meet the definition of a so-called 'public authority'. Earlier, the government has said that the fund was not owned and controlled by the government. 

Again on Thursday, the undersecretary of the Prime Minister's Office has said that the PM Cares Fund is not the Government of India fund and it is a charitable trust. If the Fund claims to be transparent, the questions raise that why it has to make such twists and turns and if the fund is being donated by Indians, why can't it become a state fund as Indians helping Indians during emergency situations. It also raises the question that if PM Cares Fund is a trust, why the Central government had fully advertised it and campaigned and fundraised for it. The other major flaws of PM Cares Fund are that it escapes the RTI Act and the auditing by the Comptroller and Auditor General of India. 

According to the FAQs of the PM Cares Fund, PM Cares Fund is audited by an independent auditor, appointed by the Trustees and it claims that since it is a public charitable trust with voluntary donations and does not receive any government support, no CAG audit is required. To the RTIs that stormed to delve into the PM Cares Fund, it has refused to provide any information on the grounds that the fund was not a Public Authority under Section 2(h) of the RTI Act. Can a person holding a public office lead a firm that won't fall as a Public authority? All these questions are lined up before the Prime Minister as these factors are relaxing public scrutiny for the PM Cares Fund and India has to agree with what the website of PM Cares fund says in terms of donations and the channel through which the money is spent or received. PM Cares Fund is funded by Indians for Indians and they are awarded fewer rights to know how their donations are being spent. Until the fund comes clean, it is not what it says it is.