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Replying to a plea before the Delhi High Court to declare the Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM CARES) Fund a "State" under Article 12 of the Constitution of India, the Under Secretary at Prime Ministers Office has informed the court that he is discharging functions in the PM Cares Trust on honorary basis only and that the fund is a charitable Trust not created by or under the Constitution of India or by any law made by the Parliament or by any State legislature.

As such, he said, "Despite being an officer of the Central Government, I am permitted to discharge my functions in PM Cares Trust on honorary basis."

Replying to the plea filed by Samyak Gangwal which demanded for PM Cares to be declared as "State" under Art. 12 of the Constitution, covered under the Right to Information Act (RTI Act), the Under Secretary has stated that the prayer is not maintainable, as it is irrelevant for the RTI Act whether an authority, body or institution is a “state" for the RTI Act.

It has further been submitted that as the plea prays only for various reliefs for transparency, it "does not matter whether PM Cares is a “State”" as it "functions with transparency and its funds are audited by an auditor who is a CA drawn from the panel prepared by the CAG."

The affidavit emphasized that the Trust’s fund is not a fund of Government of India and the amount does not go in the Consolidated Fund of India.

It was also said the petitioner "who is just a busy body" cannot invoke writ jurisdiction praying for a prerogative writ to direct a Trust to delete one of the paragraphs from the Trust Deed as "such a prayer is not only unheard of but is legally not maintainable."

Earlier Sr. Adv. Shyam Divan appearing for the petitioner had submitted that through the instant petition, the petitioner had "no intention of attributing or even alleging any wrongdoing whatsoever on the part of the present Ex-Officio Trustees of the PM CARES Fund." 

However, since the PM CARES Fund's Trustees are "high government functionaries, it is essential that checks and balances envisioned in Part III of the Constitution are put in the place on the functioning of the Fund to extinguish any chance of an allegation of quid pro quo”.

Divan further stated that if the Government is not willing to recognize the PM Cares Fund as State under Art. 12, a direction may be made to the Centre to publicise that the PM CARES Fund is not a fund of the Government of India and to restrain PM CARES from using 'Prime Minister of India' or 'Prime Minister', including its abbreviations and its name, on its website, Trust Deed and other official or unofficial communications and advertisements.

The petition filed by one Samyak Gangwal says that “PM CARES Fund performs a public function, which is similar to government functions. It utilises the privileges, benefits and exemptions which are reserved for the state.” Therefore, Gangwal argues, “It is unimaginable that a fund, which has been set up by the Prime Minister of India, has been declared to be a fund over which there is no government control.”

Art. 12 of the Constitution of India reads thus, “Definition in this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

Fundamental Rights under Part III of the Constitution of India can be enforced under authorities under Art. 12.

Case Title: Samyak Gangwal vs Union of India