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PM CARES and Constitutional Mandate

The author has tried to bring forward her assessment of the recently launched PM CARES Fund in the light of Constitution of India. The analysis begins with mirroring facts and related information. The views expressed are author’s personal views.

On 28 March 2020 Prime Minister launched PM CARES (Citizen Assistance and Relief in Emergency Situations) Fund to secure donations to fight covid-19. There existed another fund where all kinds of donations were made viz., PMNRF (Prime Minister's National Relief Fund) to render immediate relief to victims of natural calamities.[i]

PMNRF was established by the appeals of then Prime Minister Pt. Jawaharlal Nehru in January 1948 to assist displaced persons from Pakistan during the partition. It is composed of public contribution with no budgetary support or allocation by the government or by PSUs. The fund is headed by PM and managed by committee consisting of president of Indian National Congress, deputy Prime Minister, finance Minister, a representative of Tata Trust and other representative of industry to be chosen by Federation of Indian Chambers of Commerce and Industry. Contributions to PMNRF are notified for 100% tax deduction from taxable income under Section 80(G) of the Income Tax Act, 1961[ii].

So, if you donate INR 10,000 towards PMNRF and your taxable income is INR 1,00,000 then the donated amount of INR 10,000 will be deducted and net taxable amount will be INR 90,000. PMNRF accepts voluntary contributions from individuals, organisations, trust, companies, institutions etc.

Donated resources are utilised to render immediate relief to individuals or families killed in natural calamities like cyclones, floods, earthquakes and alike. In certain special cases, this fund can be utilised to help the needy to defray expenses for medical treatments like heart surgery, organ transplant, acid attack etc. Donations are accepted through BHIM/UPI/Credit Card/Debit Card/Net banking accounts of Indian Banks only. The fund is headed by Prime Minister and administered by Joint Secretary to Prime Minister as Secretary of the fund who is further assisted by an officer of the rank of Director.[iii] The expenditure out of fund is made at the directions of PM.

Cabinet within its wisdom sets up PM CARES Fund as a public charitable trust with PM being its chairman. Other members include Defence Minister, Home Minister and Finance Minister and experts from any field. The government justified it by stating that it is specifically meant to fight novel coronavirus while PMNRF is for all kinds of natural disasters. Further, any expenditure out of Consolidated Fund of India needs to be passed by the Parliament but this is not so in case of donation-based fund.[iv]

As low as INR 10 can be donated in PM CARES fund while the minimum for PMNRF is INR 100. However, it is yet not clear whether donor will get Section 80(G) tax benefits under the Income Tax Act, 1961. Foreign contributions to the fund are also allowed.

The April 2019 amendment in the Companies Act, 2013 requires companies with a net worth of INR 5 billion (US$70 million) or more, or an annual turnover of INR 10 billion (US$140 million) or more, or net profit of INR 50 million (US$699,125) or more, to spend 2% of their average net profits of three years on CSR. Ministry of Corporate Affairs, Government of India has clarified that a contribution made to PM CARES Fund shall qualify as CSR expenditure under item No. (viii) of Schedule VII of the Companies Act, 2013.[v] From celebrities like Akshay Kumar to Corporate Houses like Reliance Industries have contributed generously towards this fund.

PM CARES fund would not be audited by Comptroller and Auditor General (CAG) since these are private donations to a charitable trust and it is not within the domain of CAG to do so unless trustees request an audit. Same is with PMNRF, who is taken care of by third-party audit. However, CAG can still question as to where was the money spend as at the time of Uttarakhand floods.[vi] News reports suggest that PM CARES will also be audited by third party whose members will be appointed by its trustees.[vii]

Since its inception, the fund has been attacked by politicians and commoners. Shashi Tharoor slammed the centre by stating it as PM Modi's penchant for catchy acronyms[viii]. In a letter to PM, CPP Chairperson Smt. Sonia Gandhi suggested to transfer all fund from PM CARES to PMNRF.[ix]

Lack of transparency, confidentiality, and not being within the purview of RTI are common grounds on which PMNRF was questioned in court, a major decision of which is scheduled by the court for July 2020[x]. PM CARES fund has gained widespread popularity in the break of coronavirus and has been highly enriched in a short duration. Even then, doctors are losing their patience over the fact that government has done little to ensure their health safety.

With much of the political criticism around, studying the fund in terms of certain constitutional aspects will be useful.

Under the Constitution of India, 1950, public health is a state subject and therefore, all matters concerning the prevention, containment and treatment of an epidemic should be dealt with by states by virtue of entry 6, List II.[xi]

Under Section 2 of special law called the Epidemic Diseases Act, 1897 power is with a state government to take special measures and prescribe regulations if it or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic and ordinary provisions of the law which are in force are insufficient for the purpose.[xii]

This power in the hands of the state reflects the spirit of federalism as mandated by our Constitution and is an indicator of the crucial role that our Constitution-makers envisaged for states with respect to matters pertaining to public health. The scope of decentralisation hereby offered is surely at risk where the centre tries to procure donations from all potential sources.

The MPLADS (Members of Parliament Local Area Development Scheme) Fund is spent by the MP in his parliamentary constituency keeping in view the need of the local people in the field of public interest like education, drinking water, health, sanitation, road, library etc. The MPLADS Fund can also be spent in natural disasters such as floods, cyclones, tsunamis, earthquakes, avalanches, cloudbursts, insect attacks, landslides, tornadoes, droughts, fires, chemical, biological and radiological hazards.[xiii]

The suspension of Member of Parliament Local Area Development Scheme (MPLADS) for two years is one of the many measures that the central government has taken in preparation for a fight against coronavirus[xiv]. In these ‘corona times’, a decentralised approach could have worked better by providing early relief at the level of constituencies.

The country is unanimously fighting the present battle with the states at frontline, government policies and schemes should be such that they offer prompt response rather than inordinate delays in devolution of funds.

Ideally, the Centre should stick to its own constitutionally mandated responsibilities and fiscally empower the states to carry out their mandates.[xv] Instead, the Centre wants to shift responsibilities and funds from the states to itself. This is against the principle of cooperative federalism which requires the union and the states to work in harmony towards achieving larger goals of good governance and overall development.

The state governments’ combined expenditure has a greater impact on the economy than the Centre’s. Acts or omissions that constrain the states’ finances would worsen the slowdown. Moreover, PM CARES Fund is public money, not private money and goes against the very conceived notion of donation by private persons and corporation as alleged by the fund. By this step, we are hailing towards anti-federalism by giving too much power at the hands of the centre.

Any contribution to the Chief Minister’s Relief Fund or State Relief Fund for COVID-19 is NOT included in Schedule VII of the Companies Act, 2013 and therefore, any contribution to such funds shall not qualify as admissible CSR expenditure.[xvi] But contribution to PM CARES Fund and State Disaster Management Authority to combat COVID-19 will qualify as CSR expenditure.

The consequence of this position is that corporations would be deterred from contributing to state relief efforts, and would instead redirect their CSR money to the PM CARES Fund. Quickly after the notification, Edappadi K. Palaniswami government has ordered that all contributions made to the Chief Minister’s Public Relief Fund (CMPRF) towards fighting COVID-19 to be allocated to the Tamil Nadu State Disaster Management Authority (SDMA) to make them eligible as CSR expenditure.[xvii] As a logical exposition, such a move by the centre discourages free flow of both state and centre funds leading to subversion of state’s resources to fight unprecedented situations.

As per the provisions of the Constitution, the executive cannot spend what the legislature has not approved by vote. Under Article 283[xviii], three distinct heads are envisioned – the Consolidated Fund of India, the Contingency Fund of India, and public accounts. There exists no other head under which monies can be received by the Union. Article 266 (2)[xix] read with 284 (a)[xx] provides that monies received or deposited with the government, other than revenues or public monies raised, are payable into a public account.

Monies not per se under the ownership of the government, but deposited under its administration are constitutive of a public account. Hence, public donations, deposited on representation of public office and administered through a deep and pervasive governmental control, invariably fall under Article 266 (2).[xxi] Such funds have to be supervised by a watchful eye of the Parliament.

It is hereby concluded that the Constitution of a country provides the basic framework of the form of government and legal system, its principles have to be complied with in all situations. It is the duty of centre to act in furtherance of upholding the basic features of our Constitution one of which is federalism.

End-Notes:
  1. Know more about PMNRF at: https://pmnrf.gov.in/en/about
  2. Section 80(G) available at: https://indiankanoon.org/doc/1846831/
  3. More information is available at: https://pmnrf.gov.in/en/
  4. PM CARES Fund better suited to deal with coronavirus crisis, say legal experts; available at: https://www.businesstoday.in/current/economy-politics/pm-cares-fund-better-suited-tto-deal-with-coronavirus-crisis-say-legal-experts/story/399670.html
  5. Schedule VII; available at: http://ebook.mca.gov.in/Actpagedisplay.aspx?PAGENAME=17923
  6. CAG pulls up Uttarakhand government for poor implementation of reconstruction projects post 2013 calamity; available at: https://www.newindianexpress.com/nation/2019/feb/22/cag-pulls-up-uttarakhand-government-for-poor-implementation-of-reconstruction-projects-post-2013-cal-1942323.html
  7. Coronavirus: Independent auditors to audit PM-CARES Fund, foreign donations allowed; available at: https://www.businesstoday.in/current/economy-politics/coronavirus-independent-auditors-to-audit-pm-cares-fund-foreign-donations-allowed/story/400834.html
  8. Shashi Tharoor’s tweet available at: https://twitter.com/shashitharoor/status/1244500842469683200?lang=en
  9. Transfer all money under PM-Cares to PMNRF: Sonia Gandhi; available at: https://economictimes.indiatimes.com/news/politics-and-nation/transfer-all-money-under-pm-cares-to-pmnrf-sonia-gandhi/articleshow/75036589.cms?from=mdr
  10. Prime Minister’s National Relief Fund v. Aseem Takyar 2018 SCC OnLine Del 9191
  11. State List available at: https://en.wikipedia.org/wiki/State_List
  12. Epidemic Diseases Act,1897 available at : https://indiacode.nic.in/bitstream/123456789/10469/1/the_epidemic_diseases_act%2C_1897.pdf
  13. Know more about MPLAD Funds at: https://www.jagranjosh.com/general-knowledge/mplads-or-sansad-nidhi-yojna-1586266406-1
  14. Why suspension of MPLADS is problematic in corona times?; available at: https://www.businesstoday.in/current/economy-politics/coronavirus-in-india-why-suspension-of-mplads-is-problematic/story/400771.html
  15. View: States outspend the Centre; crippling their fiscal capacity will harm the economy; available at: https://m.economictimes.com/news/economy/finance/view-states-outspend-the-centre-crippling-their-fiscal-capacity-will-harm-the-economy/articleshow/71173732.cms
  16. CARES Fund qualifies as CSR expenditure, Contribution to CM’s Relief Fund does not: MCA; available at: https://www.barandbench.com/news/law-policy/contribution-to-pm-cares-fund-qualifies-as-csr-expenditure-cm-relief-fund-does-not-mca
  17. Contributions to CM’s fund for COVID-19 relief to be transferred to SDMA; available at: https://www.thehindu.com/news/national/tamil-nadu/contributions-to-cms-fund-for-covid-19-relief-to-be-transferred-to-sdma/article31320011.ece
  18. Article 283 available at: https://indiankanoon.org/doc/1665558/
  19. Article 266 available at: https://indiankanoon.org/doc/1532561/
  20. Article 284 available at: https://indiankanoon.org/doc/335021/
  21. The Legal Charter of PM CARES is Unsound, the Government Must Frame Rules At Once; available at: https://thewire.in/law/the-legal-charter-of-pm-cares-is-unsound-the-government-must-frame-rules-at-once
Written By: Kanika Arora - LLB Hons, RGSOIPL, IIT Kharagpur

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