The Delhi High Court on Wednesday began hearing a plea to include the Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM CARES) within the category of "State" under Article 12 of the Constitution of India.
Appearing for the petitioner, Senior Advocate Shyam Diwan argued that the PM CARES Fund satisfies various criteria to be viewed as part of "State". "Can anyone argue that this is not State? We are not able to find any factor to say that this (PM CARES) is not State. Except self-certification, everything points to it being State," Divan contended.
Alternatively, if the Fund is not held to be "State", it must stop projecting itself as if it is governmental by using the State emblem and by using the words "Prime Minister" in its name, etc, he added.
Constitutional functionaries cannot create instruments to exclude the Constitution's application, Divan argued. Constitutional functionaries are public trustees and cannot create a "cosy private enclave" beyond Constitutional scrutiny, he said. "Parties cannot contract out of the Constitution of India", he added.
Divan argued that while there are many devices that could be resorted to, to exclude an entity from the purview of "State" and, thereby, exclude judicial review, courts have held that "you cannot have such self-declarations to exempt judicial review."
He added that if PM CARES is a "State", aspects such as the appointment of officers, the delegation of functions and the way its accounts are audited, would all be applicable, as it is with government entities and not as if it is a private trust.
To buttress his stance that the Fund has been projected as if it is part of the Government of India, he added:
The members of the Fund's Trust comprise governmental functionaries who are in majority. This indicates that the government has deep and pervasive control over the Fund;
The PM is the settler of the Trust and its ex officio Chairman. This is enough for an ordinary person to believe that it is a government fund;
The purpose for which the Fund is created is also in the nature of a public purpose and closely linked to governmental functions;
The emblem of India is used;
The copyrights of the Fund belong to the Prime Minister's Office (PMO), as per the Fund's website;
The official address of the PM CARES Fund is the PMO's. The facilities used by the PM CARES Fund are financed by tax payer money. The Fund enjoys benefits and exemptions reserved for the "State";
Donations to PM CARES Fund are exempted from tax.
Divan further argued that creating structures that are immune from scrutiny becomes an extraordinarily unhealthy precedent.