Thread by @barandbench

Delhi High Court takes up plea to include PM CARES Fund within the category of "State" under the Constitution of India.

Senior Advocate Shyam Divan appears for the petitioner. The matter is before a Bench headed by Chief Justice DN Patel.

#DelhiHighCourt #PMCARES

Divan: Our central point is when you have governmental functionaries, or high governmental functionaries in this case, can they create a structure that is apparently exempt from the Constitution or outside the reach of the Constitution?

#DelhiHighCourt #PMCARES

Divan: Or are governmental functionaries obliged to remain within the four corners of the Constitution?

#DelhiHighCourt #PMCARES

If it is projected to the world at large that PM CARES is governmental in nature, then it is "State" according to us, Divan

#DelhiHighCourt #PMCARES

Divan: The essence of our system is we have structures for accountability. Judicial review is absolutely central. There is parliamentary oversight, there is a Comptroller and Auditor General, there are a lot of checks and balances.

#DelhiHighCourt #PMCARES

It is our understanding that you cannot have a structure that is exempt from the Constitution. The primary argument is the organization called PM CARES is nothing but "State", Divan argues.

#DelhiHighCourt #PMCARES

Divan: If the Court comes to the conclusion that PM CARES is not "State", we have an alternative prayer that then PM. CARES cannot project that it is the "Government of India" in various respects

#DelhiHighCourt #PMCARES

Divan recounts prayers, apart from including #PMCARES as "State", prayers also made to disclose audit reports on website, details of donations in every quarter including donor's names of those who donate Rs 1 lakh or any other amount as court may deem fit

#DelhiHighCourt

Divan reads: This is part of transparency and good governance... disclose details of utilization of funds, resolutions on the expenditure of funds (reading from prayers)

#DelhiHighCourt #PMCARES

If Court concludes that #PMCARES is not "State", then it should be restrained from using "Prime Minister", State emblem, "gov.in", PMO as official address, Divan.

Further secretarial support or support from offices of GOI cannot be extended, Divan

#DelhiHC

This is of a permanent character and it is not as if there is something that is happening and we need an emergency. The vision is that India needs institutions for the long term. It is a noble purpose. The issue is whether it is subject to constitutional limitations, Divan

The issue is that the "Prime Minister" is the settler. For ordinary people, it becomes a governmental fund, just by virtue of the name, Divan argues.

#DelhiHighCourt #PMCARES

Divan reads objects of the Fund which include to support or undertake relief in relation to public health or any other kind of emergency, manmade or natural, funding relevant research, financial assistance, etc.

#DelhiHighCourt #PMCARES

Divan reads that it also refers to "schemes announced by the Prime Minister."

#DelhiHighCourt #PMCARES

Divan reads that benefits of fund would be available to all regardless of any caste, class etc.

We will continue after lunch, at 2.15, Chief Justice says.

#DelhiHighCourt #PMCARES

The bench has risen for lunch break.

Hearing in a case questioning the legal status of #PMCARES Fund and whether it falls under the category of "State" under the Constitution is slated to continue at 2.15 pm.

#DelhiHighCourt #PMCARES

Hearing resumes. Divan reads a clause pertaining the PM CARES Trust.

#DelhiHighCourt #PMCARES

Divan reads that the Trust is not created under the Constitution of India or any law by parliament or State legislature, that trust is not controlled or financed by govt (Centre or State), either direct or indirect in the functioning of the trust.

#DelhiHighCourt #PMCARES

Divan reads from the clause that details contributors will not be divulged in the interest of privacy, that it would only be divulged for taxation purposes, that Trust would have the discretion to accept or refuse contributions

#DelhiHighCourt #PMCARES

Divan: It is our understanding of the law that parties cannot contract out of the Constitution of India. The Constitution is elastic, imprimatur, and reach extend across India and to all functionaries.

#DelhiHighCourt #PMCARES

You have many devices that seek to exclude judicial review. But Courts say that you cannot have such self-declarations to exempt judicial review, Divan argues.

#DelhiHighCourt #PMCARES

Recitals and statements part of Clause 5.3. especially that members of Trust are govt functionaries is for administrative convenience and does not mean it is govt will not help, Divan says.

Divan argues that relevant laws would attach.

#DelhiHighCourt #PMCARES

Divan: Can you have an ex officio collector, who is also functioning, set up a trust with other govt officials holding govt positions and say 'as far as this is concerned, this is a private trust and it has a laudable objective?'

#DelhiHighCourt #PMCARES

I don't think members of the Legislature can create reach out and create structures that are beyond oversight, Divan argues.

#DelhiHighCourt #PMCARES

If you see, you are creating a situation here where persons can contribute and they are completely immune from scrutiny because they (PM CARES) say we will not divulge ID citing privacy, Divan argues.

#DelhiHighCourt #PMCARES

Divan refers to Indira Gandhi Pratibha Pratishthan.

Divan says creating structures that are immune from scrutiny becomes an extraordinarily unhealthy precedent.

#DelhiHighCourt #PMCARES

Divan: Look at the Board of Trustees

Divan reads who shall constitute Board, how Trustees shall be succeeded or appointed etc.

#DelhiHighCourt #PMCARES

Divan reads that Trustees shall act in pro bono capacity, Prime Minister shall be chairperson, chairperson empowered to modify the constitution of Trustees through written instrument etc.

#DelhiHighCourt #PMCARES

Divan reads from the relevant clause that Prime Minister's Office (PMO) shall provide administrative and secretarial support for the management and administration of the Trust.

#DelhiHighCourt #PMCARES

The moment you use the word "ex officio" and say that these are the dominant persons, according to me, nothing further, in view of the Constitution Bench judgment of the Supreme Court, is required to canvass the position that this is "State": Divan.

#DelhiHighCourt #PMCARES

Just this much shows the pervasive control of the Central Govt. The moment you have ex officio, 4 members out of 7... no further elaborate argument is required. We have the guidance of the Supreme Court: Divan

#DelhiHighCourt #PMCARES

Divan refers to the Supreme Court's judgment in Pradeep Kumar Biswas (citation 2002 5 SCC 111)

#DelhiHighCourt #PMCARES

Divan continues reading clauses pertaining to PM CARES Trust.

Divan: Framers of the Trust have quite rightly given quite broad objects... I don't want to make any comment on the objects.

#DelhiHighCourt #PMCARES

Divan: So this was on powers of Trustees.

Divan goes on to read the clause pertaining to investments of the Trust, alteration, and variation of investment, etc.

#DelhiHighCourt #PMCARES

Divan reads clause in "office bearers" of the Trust (Clause 11).

Divan: If this is "State", then all officers you appoint wrt to State have to go through rigour and discipline. If it is outside "State", if we are wrong, then it would not apply.

#DelhiHighCourt #PMCARES

Divan reads clause on delegation of functions

Divan: On delegation as such, one may not have a problem. But if it is "State", the manner, limit, extend of delegations - all become very crucial.

#DelhiHighCourt #PMCARES

Divan reads clause on income, audit of accounts of Trust by independent auditors.

Divan: If this is "State" or nothing but a limb of the State, then the audit protocol will be as applicable to the State and not as applicable to a private company/ Trust

#DelhiHighCourt #PMCARES

Divan reads "dissolution" clause (Clause 19), indemnifying/ transfer of trust property to a like charitable trust on dissolution.

Divan reads Clause 20 which relating to irrevocability.

#DelhiHighCourt #PMCARES

Divan: I am done with the Trust deed. I would like to continue with some documents mentioned. But before I do so, may I please invite attention... to what the "Trust" says.

#DelhiHighCourt #PMCARES

Divan: I want to point a short thing. Please see you have "PM CARES" and State emblem on left side. This is how they project themselves. I am not saying it is good or bad...They also use the gov.in.

This appears to be "State", he says.

#DelhiHighCourt #PMCARES

Use of emblem conveys that it belongs to GOI, that it will be subject to discipline under the Constitution or the laws of India, it is not going to be private where all transactions are opaque, Divan argues.

#DelhiHighCourt #PMCARES

Divan makes submissions on how PM CARES was created and announced. Divan refers to a Press Info Bureau document dated March 28, 2020, seeking generous donation of funds amid the #Covid_19 pandemic.

@PIB_India

#DelhiHighCourt #PMCARES

Divan recalls that the Press Information Bureau release also stated that donations would be exempted from tax.

#DelhiHighCourt #PMCARES

Divan: It is a good thing that we have donations exempt. But it has to be within Indian law. This is pushed out by the PMO, there is a presumption that it is a Government of India announcement and that it is a structure under the Government of India.

#DelhiHighCourt #PMCARES

Divan refers to how high functionaries of the Govt projected the PM CARES fund to the public and their peers.

#DelhiHighCourt #PMCARES

Divan refers to statement by Rajya Sabha Vice President on March 29, 2020 that stated "Govt has set up a fund", i.e. the PMCARES

#DelhiHighCourt #PMCARES

Divan: It is his (Rajya Sabha VP's) impression. He is obviously making an accurate statement. This was never contradicted by the PM CARES.

#DelhiHighCourt #PMCARES

Divan: He (Vice President) tells Rajya Sabha that govt has set up a fund under the PM CARES fund, that I have contributed one month's salary, I request members also to contribute one month's salary. This was the Vice President.

#DelhiHighCourt #PMCARES

Divan recalls that the Minister of Chemicals has also stated that it is a govt fund while calling for employees to contribute donations.

Divan: The projection is clear, brooks no ambiguity that this is a govt of India set up, so please contribute

#DelhiHighCourt #PMCARES

Divan says that there is an April letter by cabinet secretary, a top bureaucrat, urging for funds to be contributed to the PM CARES fund while referring to it as being set up by govt.

#DelhiHighCourt #PMCARES

This is perceived as part of Govt efforts, Divan argues, referring to a statement issued by the Union Ministry of Labour.

#DelhiHighCourt #PMCARES

Divan refers to the Union Ministry of Defence request for donation of a part of salary; the appeal has the approval of the "Hon'ble Raksha Mantri", i.e. a trustee has also approved and sanctioned this, Divan adds.

#DelhiHighCourt #PMCARES

I don't say there is anything wrong at all. I am showing that all of these are in the nature of different Ministries urging for contributions, Divan argues.

#DelhiHighCourt #PMCARES

Divan refers to an appeal made by Union Human Resource Development seeking donation of one day's salary of the employees to the PM CARES fund.

#DelhiHighCourt #PMCARES

Divan highlights that contributions have been viewed as within the purview of Corporate Social Responsibility (CSR) expenditure. Divan reads a part that says that the "Govt of India has set up" the PM CARES.

#DelhiHighCourt #PMCARES

No one says this is a wrong thing, but these communications show that this has been set up by the Central Govt, Divan argues.

#DelhiHighCourt #PMCARES

Divan: I have covered most of the documents, there are certain others, will come back to them when I want to make specific submissions... I want to depart a little bit from the flow of arguments. Would request the court master to hand over compilation.

#DelhiHighCourt #PMCARES

Court says it does not have the compilation.

Divan: The message I had received is that the compilation has been shared. But doesn't matter, I'll come back to it.

CJ says Divan can refer to compilation. Divan refers to Pradeep Kumar Biswas judgment

#DelhiHighCourt #PMCARES

Divan: This is a Constitution Bench Judgment of the Supreme Court. 7 learned Judges. In a context set out by Justice Ruma Pal...

Divan reads intro para from the judgment which can be read here: indiankanoon.org/doc/471272/

#DelhiHighCourt #PMCARES

Divan reads the question posed in the Pradeep Kumar Biswas judgment: "Is the CSIR a State within the meaning of Article 12 of the Constitution and if it is should this Court reverse a decision which has stood for over a quarter of a century?"

#DelhiHighCourt #PMCARES

Divan says that he is only focusing on two aspects: "management" and "control."

#DelhiHighCourt #PMCARES

Divan continues reading from the judgment of Pradeep Kumar Biswas vs Indian Institute Of Chemical Biology and ors.

#DelhiHighCourt #PMCARES

Divan continues reading the judgment: "... An ex-officio appointment means that the appointment is by virtue of the office; without any other warrant or appointment than that resulting from the holding of a particular office..."

#DelhiHighCourt #PMCARES

Divan: I want to make some short comments on the judgment... I think this judgment really controls the field as far as we are concerned on two or three crucial factors. First, how do we deal with "ex officio"?

#DelhiHighCourt #PMCARES

Divan: In our present case, it is four trustees, which is the majority. The second point, in CSIR it was the President or Prime Minister. In our case, it is the Prime Minister. Supreme Court says that subjugation of govt body is complete.

#DelhiHighCourt #PMCARES

Divan: The expression (in the judgment) is that "the control of Govt in CSIR ubiquitous". Here, Prime Minister can remove trustees, change rules, everything can be done by the Prime Minister.

#DelhiHighCourt #PMCARES

Divan now refers to the written submissions filed by the petitioner.

#DelhiHighCourt #PMCARES

Divan reads from written submissions, reads that Constitutional functionaries cannot escape the law, the limits of the Constitution.

#DelhiHighCourt #PMCARES

Divan (continues reading): No matter high the individual rises, the law is always above. We will say the Constitution is always above these high functionaries.

#DelhiHighCourt #PMCARES

Divan (continues reading): Be you ever so high, the law of the Constitution is above you. The Constitution of India does not permit the functionaries to contract out of the Constitution.

#DelhiHighCourt #PMCARES

Divan reads that Constitutional functionaries cannot create instruments to exclude the constitution's application.

#DelhiHighCourt #PMCaresFund

Divan reads that Constitutional functionaries are public trustees, that constitutional functionaries cannot create a "cozy private enclave" which is beyond Constitutional scrutiny.

#DelhiHighCourt #PMCaresFund #PMCares

We are saying Constitution requires transparency, we are not saying there is quid pro quo like in Indira Gandhi Pratibha Pratishthan. We are not going so far because the structure itself is faulty, Divan says.

#DelhiHighCourt #PMCaresFund #PMCares

CJ: Let me note down sir, you are going so fast. We are not stenographers

Divan: I apologise for speeding

CJ: You are going so nicely, but we have to note down

Divan: I will slow down

#DelhiHighCourt #PMCaresFund #PMCares #CourtroomExchange

Divan argues that Article 12 of the Constitution involves a wide and inclusive definition of "State."

Divan refers to case laws interpreting "other authorities" under Article 12 of the Constitution.

#DelhiHighCourt #PMCaresFund #PMCares

Divan compares PM CARES to the guidelines in Ajay Hasia case. Notes that PM CARES office is located at PMO, officers assisting are from Prime Minister's Office who are doing it after being permitted to do so pro bono (according to an affidavit).

#DelhiHighCourt #PMCares

On the criterion of "deep and pervasive state control" guideline, Divan notes that PM CARES has ex officio govt functionaries.

#DelhiHighCourt #PMCares

Next criterion in Ajay Hasia case is that functions of the entity are of public importance and closely related to governmental functions. Divan argues that this is also satisfied when it comes to PM CARES

Divan: Can anyone argue that this is not State?

#DelhiHighCourt #PMCares

We are not able to find any factor to say that this (PM CARES) is not State except the self-certification, everything points to it being State, Divan argues.

#DelhiHighCourt #PMCaresFund #PMCARES

Can a collector, during a disaster, get together with others or some Tehsildars and say there is an emergency, please contribute, we are of integrity but this is not "State"? Divan argues.

#DelhiHighCourt #PMCaresFund #PMCARES

Those letters, communications, documents (regarding requests for contributions to PM CARES) annexed to the petition have not been contested on affidavit and no one has said this is wrong or that we have clarified, Divan argues.

#DelhiHighCourt #PMCaresFund #PMCARES

Facilities used by the PM CARES Fund is also being financed by taxpayers which shows that is a govt instrumentality, PM CARES fund uses domain name gov.in, PM CARES uses emblem of India and nomenclature "Prime Minister", address is PMO, Divan argues

#DelhiHC

#PMCARES released Rs 1 crores to the State govts and UTs for migrant workers. The release of funds in such a manner is a function of Govt and PM CARES has performed that function, Divan argues

Divan: It is a good thing..but it is indicative of who this is really

#DelhiHighCourt

Copyright to contents of the Fund are also owned by PMO, according to the website, Divan argues.

#DelhiHighCourt #PMCaresFund #PMCARES

It is nothing but an instrumentality of the "State", it falls under "other authorities" under Article 12 of the Constitution, Divan argues.

#DelhiHighCourt #PMCaresFund #PMCARES

PM CARES functions from PMO office, its functions are akin to public functions, it utilizes benefits, exemptions reserved for the State; it satisfies the tests in Ajay Hasia case (on what constitutes "govt instrumentalities"), Divan argues

#DelhiHighCourt #PMCaresFund #PMCARES

Chief Justice says arguments can continue on Monday at 2.15 pm.

Also informs that two Judges recently transferred to #DelhiHighCourt from Allahabad High Court will be taking oath on Monday.

Hearing adjourned.

#DelhiHighCourt #PMCaresFund #PMCARES