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How Government of India stonewalled RTI applications on PM Cares Funds

A series of RTI applications were filed in mid-June 2020 seeking information regarding the deliberations related to setting up of PM Cares Funds and allocations and use of funds from these PM Cares Funds. A summary of the RTI applications and replies and key observations about each one, compiled by Anjali Bharadwaj: 
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RTI 1- Prime Minister’s Office

An RTI application was filed to the PMO seeking a copy of all files held by the PMO related to the PM CARES Fund. The PMO refused access to information citing that “PM CARES Fund is not a Public Authority under the ambit of Section 2(h) of the RTI Act, 2005.”
Click here for copy of RTI application and reply.
Observation: 
The PMO is obfuscating the matter by providing an incorrect and misleading response. The RTI application explicitly sought a copy of records related to the PM CARES Fund HELD BY the Prime Ministers Office (PMO). The PMO is a public authority under the RTI Act and is statutorily obligated to provide information. The issue of whether the PM CARES Fund qualifies as a public authority under the RTI Act is immaterial in so far as this request for information was concerned as only the records held by the PMO were sought. If any files related to the PM CARES Fund are held by or under the control of the PMO, which is a public authority, it is duty bound to furnish them as per the provisions of the RTI Act.

RTI 2 to Ministry of Corporate Affairs

RTI application sought copy of all the files and correspondence regarding the Office Memorandum issued by MoCA dated March 28, 2020 with the subject- Clarification on contribution to PM CARES Fund as eligible CSR activity under item no. (viii) of the Schedule VII of Companies Act, 2013.
Reply: Provided copy of correspondence and notings regarding the OM.
Click here for copy of RTI application and reply. 
Observations:
(1) On 28.3.2020, MoCA issued an OM with the subject “Clarification on contribution to PM CARES Fund as eligible CSR activity under item no. (viii) of the Schedule VII of Companies Act, 2013”. The OM states:
“item no. (viii) of the Schedule VII of the Companies Act, 2013, which enumerates activities that may be undertaken by companies in discharge of their CSR obligations, inter alia provides that contribution to any fund set up by the Central Government for socio-economic development and relief qualifies as CSR expenditure. The PM-CARES Fund has been set up to provide relief to those affected by any kind of emergency or distress situation. Accordingly, it is clarified that any contribution made to the PM CARES Fund shall qualify as CSR expenditure under the Companies Act 2013. 3. This issues with the approval of competent authority.”
(2) At the time of this clarification, Item viii of Schedule VII of the Companies Act, read as under-
“SCHEDULE VII (See Section 135)
Activities which may be included by companies in their Corporate Social Responsibility Policies
Activities relating to:—
xxx
viii) contribution to the Prime Minister’s National Relief Fund or any other fund set up by the Central
Government for socio-economic development and relief and welfare of the Scheduled Castes, the
Scheduled Tribes, other backward classes, minorities and women;”
This shows that only 2 type of contributions were eligible under item (viii)- either those made to the prime minister's national relief fund or those to any other fund set up by the central government for development, relief, welfare.
(3) The documents accessed under RTI Act show that in the deliberations related to this clarification, the Ministry relied upon the understanding that the PM CARES Fund has been set up by the Central government and is therefore eligible for CSR expenditure. The deliberations are recorded in emails exchanged between officials of the Ministry between 9.52 pm and 11.29 pm on March 28, 2020, one day after the Fund was registered and announced. Relevant portions of the file noting signed by Deputy Director Aparna Mudiam are reproduced below:
“The Government of India is taking various measures to address the unprecedented health crisis caused by the COVID-19 pandemic. The Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund’ (PM CARES Fund) has been set up with the primary objective of dealing with an emergency or distress situation as posed by COVID-19 pandemic, and to provide relief to the affected.
Xxx
2. Item no. (viii) of the Schedule VII of the Companies Act, 2013 inter alia provides for contribution to any funds set up by the Central Government for socio-economic development and relief. Contribution to PM CARES Fund is therefore an eligible CSR activity. Also, as per General Circular no. 21/2014 dated 18.06.2014 items in Schedule VII are broad based and may be interpreted liberally."  
(4) A perusal of the general circular 21/2014 referenced in the file noting shows that it only provides for liberally interpreting activities. No relaxation is provided to the requirement that the fund has to be set up by the Central government.
(5) Therefore, the clarification that contributions to PM CARES Fund are eligible for CSR funding relies on the fact that it is set up by the Central government. This is also noted in the OM.
(6) If a body is set up by the government, it qualifies as a public authority under the RTI Act as per the definition provided in Section 2(h)(d) as given below:
“2.(h) "public authority" means any authority or body or institution of self- government established or constituted—
xxx
(d) by notification issued or order made by the appropriate Government,”
(7) The urgency with which the issue was dealt with could perhaps be to enable the PM CARES Fund to receive contributions from CSR funds of companies for the financial year 2019-20. The PM Cares Fund had a corpus of Rs 3,076.62 crore on March 31, 2020, of which Rs 3,075.85 crore was listed as “voluntary contributions”, according to its official website. The story by Indian Express highlights that as per RTI replies by the PSUs, in many cases PSUs donated from their unused allocation for  Corporate Social Responsibility (CSR) activities for 2019-2020 to the fund that was launched with just four days left for the financial year to end.
(8) On 26th May, 2020 (nearly 2 months after the OM issued by MoCA), the Central government amended item (viii) of Schedule VII of the Companies Act through a notification. The amendment was to insert PM CARES fund in the item. The amended version now reads as-
“(viii) contribution to the prime minister's national relief fund or Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund)] or any other fund set up by the central government for socio economic development and relief and welfare of the schedule caste, tribes, other backward classes, minorities and women;”
This notification further states that it shall be deemed to have come into force retrospectively from  28th March, 2020.

RTI 3- RTI to Cabinet Secretariat

An RTI application was filed to the Cabinet Secretariat seeking information on dates on which the cabinet discussed the PM CARES Funds a copy of all relevant files. The reply by the Cabinet Secretariat states, “As per inputs received from office, there was no agenda item in any Cabinet meeting specifically related to creation of PM-Cares Fund.”
Click here for copy of RTI application and reply.
Observations: 
This suggests that the decision to set up PM CARES Fund was not approved by cabinet secretariat. On the other hand, the documents from MoCA relied on that fact that the fund has been set up by the Central government to approve it for CSR funding. Appears odd that the decision to set up a body in which the PM is the chair in ex-officio capacity and 3 ministers are trustees, in ex-officio capacity, did not go through the cabinet.

RTI 4- RTI to Ministry of Law

Information was requested on whether comments of the Ministry of Law and Justice were sought on the PM CARES Fund and a copy of the relevant correspondence and notings. Despite passage of 2 months since the RTI application was filed, no response has been provided.
Click here for copy of RTI application and reply.  

RTI 5 to Labour ministry

As per information available in the public domain on official government websites Rs. 1000 Crore from the PM CARES Fund has been allocated for care of migrant labourers. An RTI application was filed to the Labour ministry seeking details of funds allocated to each state/UT, guidelines regarding utilisation of the funds, details of whether views of the ministry were sought regarding allocation of these funds.
Kindly provide the following information in this regard-
1. Amount of funds allocated to each state/UT.
2. Guidelines/advisory issued regarding utilisation of the funds for care of migrant labourers.
3. Kindly provide a copy of the letter/note/file vide which the views of the Ministry of Labour and Employment were sought on the funds allocated for allocated for care of migrant labourers from the PM CARES Fund (Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund).
4. Kindly provide a copy of the comments, correspondence, notings submitted, if any by the Ministry.
Click here for copy of RTI application and reply.
Reply:
RTI application was transferred to Prime Minister's Office vide registration number PMOIN/R/T/20/00300 respectively. Reply from PMO- PM CARES Fund is not a Public Authority under the ambit of Section 2(h) of the RTI Act, 2005. However, relevant information in respect of PM
CARES Fund may be seen on the Website-pmcares.gov.in

RTI 6 to Chief Labour Commissioner

As per information available in the public domain on official government websites Rs. 1000 Crore from the PM CARES Fund has been allocated for care of migrant labourers. An RTI application was filed to the Chief Labour Commissioner seeking details of funds allocated to each state/UT, guidelines regarding utilisation of the funds, details of whether views of the Chief Labour Commissioner were sought regarding allocation of these funds.
Click here for copy of RTI application and reply.   
Reply:
On 19/6/2020- RTI application transferred to Ministry of Labour & Employment. vide registration number MLABE/R/T/20/00511.
On 7/7/2020 Ministry of Labour transferred RTI request to Directorate General of Labour & Welfare, Head Quarter vide registration number DGLHQ/R/T/20/00206, DGLHQ/R/T/20/00232.
On 7/7/2020 status of DGLHQ/R/T/20/00206, shows request transferred to Office of The Chief  Labour Commissioner vide registration number OTCLC/R/T/20/00330 respectively.
On 10/7/2020- status of OTCLC/R/T/20/00330 shows REQUEST FORWARDED TO CPIO
On 15/7/2020- status of DGLHQ/R/T/20/00232, shows request transferred to Office of The Chief Labour Commissioner vide registration number OTCLC/R/T/20/00352 respectively.
On 18/8/2020- status of OTCLC/R/T/20/00352 shows request disposed of with pdf reply. Reply says no such information is available in this section
Observations:
Attempting to frustrate the RTI Act by transferring it around to each other. Finally Office of The Chief Labour Commissioner, to whom the original RTI was filed, replied on 18/8/2020 after it circled back to them by being transferred 5 times! The reply states no such information is available. The manner in which the RTI application has been dealt with is a violation of the Act, as they should have transferred the application to whoever has the necessary information as required under section 6(3) of the RTI Act.

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