Division Bench of Delhi High Court refers Decision to Another Judge due to difference of opinion between them on Public Scrutiny of Prime Minister’s National Relief Fund

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The present case “Prime Minister’s National Relief Fund v. Aseem Takyar” was adjudicated by a Division Bench of Justice S. Ravindra Bhat and Justice Sunil Gaur on 23rd May 2018.

The question for consideration in this appeal was whether Prime Minister’s National Relief Fund or PMNRF is a “public authority‟ within the Right to Information Act, 2005 and whether the information pertaining to its transactions can be made available in the public domain.

Firstly, it was contended 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. Further, no question as regards to the operations of PMNRF are permitted in both the houses of the Parliament. Even Right to privacy of the donors is protected under the Right to Information Act and providing information would also be contrary to the Indian customary belief of Gupt Daan.

The opposite side contended that PMNRF is not a public authority as no specific expenditure is incurred by the Consolidated Fund of India and there is no separate office of the PMNRF nor any separate staff has been allocated by the government for management of the said fund. All concerned in the management of the PMNRF work on honorary basis( position held only as an honour than formal legal agreements where negligible payment is provided in this regard).

Further, the disclosure of the information sought will reveal whether any personal bias is shown while distribution of funds. As regards the right to privacy, it is argued that disbursement from the fund becomes a matter of public record and the  confidential relationship which may have existed ends.

JUSTICE S. RAVINDRA BHAT:

The Prime Minister Pt. Jawaharlal Nehru established this fund in 1948 along with the Deputy Prime Minister, Finance Minister and other important state functionaries as “Managers‟ of PMNRF. Further, Registration of PMNRF as a Trust for the purposes of income tax exemption and obtaining of Permanent Account Number (PAN) of the said fund was effected.

The Supreme Court ruled that the fund qualifies and must be deemed to be a  “public authority‟ within the Right To Information Act, 2005.

He observed

“Therefore, in light of the object of the RTI Act, the term “public
authority‟ must be subjected to a liberal interpretation.”

“…all disbursements from PMNRF are made solely on the discretion of the Prime Minister…decisions taken by him or her with respect to operation of PMNRF cannot be said to be made in a personal capacity”

He further observed

“The court further notices that the fund, on one hand, admits to providing information as far as possible and then claims that it is not bound to give any information. Being a public body entrusted with the task of providing immediate relief…PMNRF should have disclosed the entire information about its transactions and fulfill its obligations under…the RTI Act.”

” the relationship between PMNRF and the donors/beneficiaries does not take colour of a “fiduciary relationship‟…The donors do not repose trust in PMNRF in conducting their business and the same holds true for the beneficiaries…the act of donation is an act of charity which is not sufficient to establish a fiduciary relationship… Consequently, the defense of exemption…under…the RTI Act is not sustainable”

JUSTICE SUNIL GAUR:

The PMNRF is not created by the government, but is created by the then Prime Minister in his ex-officio capacity. Further the Supreme Court in “Thalappalam Service Co-operative Bank Ltd. & Ors. v. State of Kerala & Ors.” (2013) 16 SCC 82 that a body must be “substantially controlled” by the Appropriate Authority and not merely supervised or regulated to make it a “Public Authority”.

In “Army Welfare Housing Organization v. Adjutant General‟s Branch & Ors.” (2015) 216 DLT 184 the Supreme Court has clarified that merely because certain government functionaries hold a position in his/her ex-officio capacity, Ipso facto does not mean that Government is exercising control through the ex officio members.

He observed

“The cause for which appellant-Trust was created and exists is purely charitable and neither the funds of this Trust are used for any Government projects nor is this Trust governed by any of the Government policies. So, how can this Trust be labelled as ‘Public Authority'”

In “President’s Secretariat v. Nitish Kumar Tripathi” 2012 SCC On Line Del 3268 the Supreme Court observed that public funds are those funds which are collected by the State from the citizens by imposition of taxes, duties, cess, services charges, etc. So, the funds in PMNRF do not form a part of the “public funds”.

REFERENCE ORDER:

By reason of divergence of opinions the points of difference are referred to a third Hon’ble Judge of the Delhi High Court. The points of difference are:

A) Whether the Prime Minister‟s National Relief Fund is a “public authority” as per the Right to Information Act, 2005?

B) Whether information pertaining to various transactions made by the Fund can be made available in public domain?

This note is penned by Gunjeet Singh Bagga.

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