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Questions over FCRA nod for PM CARES

The Fund got Rs. 39.68 lakh in foreign currency in March.  

The PM CARES Fund has received exemption from all provisions of the law meant to regulate foreign donations, although it does not seem to meet the precondition of being a body established and owned by the government whose accounts are audited by the Comptroller and Auditor-General (CAG).

Responding to a recent query under the Right to Information (RTI) Act asking for details and documents on the exemption, the Home Ministry said it had to “seek the consent” of PM CARES before giving out the information, as it would be considered a “third party” under the RTI Act. It also invoked the clause that allows information to be denied if it is held as part of a fiduciary relationship.

According to the frequently asked questions (FAQ) section on the PM CARES website, the fund “has received exemption from operation of all provisions of the Foreign Contribution (Regulation) Act, 2010” or FCRA.

On January 30, 2020, the Home Ministry issued a fresh order “to exempt organisations (not being a political party), constituted or established by or under a Central Act or a State Act or by any administrative or executive order of the Central Government or any State Government and wholly owned by the respective Government and required to have their accounts compulsorily audited by the CAG or any of the agencies of the CAG”.

The PM CARES Fund is a public charitable trust registered under the Registration Act, 1908. It was not set up through a Central or State Act. It has argued that it is not a public authority under RTI; all bodies established by the government are public authorities under that Act. The Fund is audited by an independent auditor, not by the CAG.

Although it does not seem to fulfil the conditions in the January order, PM CARES has been granted exemption from FCRA. “Yes, PM CARES can be given exemption under FCRA,” a senior Central government official told The Hindu . “The exemption is typically given to Central universities,” added the official. Such universities are usually set up by a Central Act, and are subject to CAG audit.

In June, RTI activist Commodore Lokesh Batra (Retd.) filed a request with the Home Ministry asking for the dates when the PM CARES Fund had applied for and been granted FCRA exemption.

After an appeal on August 14, the MHA responded on August 19, saying that the information sought “pertains to a third party”, and “cannot be acceded to...without seeking [its] consent”.

The MHA also referenced Section 8(1)(e), which allows denial of information “available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information”.