SJCL NATIONAL MEMORANDUM DRAFTING COMPETITION, 2021

TC-05 (R)

ST. JOSEPH’S COLLEGE OF LAW, NATIONAL MEMORANDUM

DRAFTING COMPETITION, 2021

BEFORE THE HON’BLE SUPREME COURT OF SHIRE

UNDER ART.32 OF THE CONSTITUTION OF SHIRE

IN THE MATTER OF

MR. PRAKASH ROSHAN ………….………………………………………PETITIONER

V.

UNION OF SHIRE & OTHERS………..……………………..………...… RESPONDENT

PUBLIC INTEREST LITIGATION (PIL) NO.---- 26TH APRIL OF 2021

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND OTHER

HON’BLE JUSTICES OF THE SUPREME COURT OF SHIRE

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………….…………………….…………..….. [IV]

INDEX OF AUTHORTIES…………………………….………….…………..……....... [V-X]
STATEMENT OF JURISDICTION…………………………………………...……….… [XI]
STATEMENT OF FACTS……….………………………………………..…………….. [XII]
ISSUES RAISED…………………………………………………………….................. [XIII]
SUMMARY OF ARGUMENTS…………………….…………………………….….... [XIV]
ARGUMENTS ADVANCED………………….………………….………………….... [1-20]

1. WHETHER THE PETITION IS MAINTAINABLE AND WHETHER THE

PETITIONER HAS A LOCUS STANDI IN THE CASE? ………...…………..[01-06]

[1.1] The petition has not exhausted the alternative remedies………...…………... [01-02]

[1.1.1] Petitioners must ensure and maintain the hierarchical system of the Court of
law………………………...……………...…………………………………………. [2]

[1.2] There has been no violation of fundamental rights………………………...... [02-03]

[1.3] The present petition does not carry a substantial question of law………….... [03-04]

[1.4] The petitioner does not have a Locus standi…………………………………. [04-05]

[1.5] The Act of Government was Sovereign Act…………………………………. [05-06]

2. WHETHER THE ACTIONS OF THE GOVERNMENT IN MANAGING THE PM

SEVA FUND VIOLATE THE PRINCIPLES OF ACCOUNTABILITY AND
TRANSPARENCY?…………..…………………………………………………...[06-12]

[2.1] It is not a violation of right to know under Art.19 (1) (a) as it is not absolute in
nature…………………………..…………………………………………...……… [06-09]

[2.2] PM SEVA fund is not substantially financed by the Central Government of

Shire…....................................................................................................................... [09-11]

[2.3] PM SEVA Fund as public charitable trust does not fall within RTI Act…..... [11-12]

3. WHETHER A ‘FUND,’ CONSOLIDATED OR OTHERWISE, FORMULATED

BY THE GOVERNMENT FALLS WITHIN THE PURVIEW OF
TRANSPARENCY NORMS?....………………………………………………….[12-16]

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[3.1] The PM SEVA Fund doesn’t fall within the definition of public authority..... [12-14]

[3.1.1] Fund is not audited and checked by the CAG……………...……………… [14]

[3.2] The PM SEVA Fund constituted as a Public Charitable trust……………..… [14-15]

[3.3] The PM SEVA Fund falls within the sec.8 (I) (e) of the Right to information (RTI)
Act, 2005…………………………………………...………………………..…….. [15-16]

4. WHETHER THE GOVERNMENT HAS ANY AUTHORITY TO RECEIVE

OFFSHORE DONATIONS?……………..……………………………………….[17-20]

[4.1] PM SEVA fund within the ambit of FCRA…………………………...………… [17]

[4.2] PM SEVA fund in the ambit of CSR expenditure………………………...…. [17-18]

[4.3] There was no violation of Article 14………………………………...………. [18-20]

[4.4] There was no violation of natural justice……………………………...………… [20]

PRAYER………………………………………………………………………………….. [21]

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LIST OF ABBREVIATIONS

& And

¶ Paragraph

AIR All India Reporter

Art. Article

Co. Company

Const. Constitution

CSR Corporate Social

Responsibility
FCRA Foreign contribution
(Regulation) Act
Govt. Government

Hon’ble Honorable

ILR Indian Law Report

ITA The Indian Trust Act, 1882

J. Justice

Ltd. Limited

Ors. Others

Para Paragraph

Pg. Page

PIL Public Interest Litigation

RTI Right to Information

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

Sec. Section

UOI Union of India

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INDEX OF AUTHORITIES

TABLE OF CASES:

1. A.V. Venkateshwaran v. R.S.Wadhwani AIR 1961 SC 1906…………...………………...1

2. Acharya Maharajshri v. The State of Gujrat, (1974) 2098………………………..……...19
3. Adv. Arvind K. Waghmare v. PM CARES Fund, LD-VC-PIL NO.54/2020………...11,15
4. Andhra Industrial Works v. Chief Controller of Imports, A.I.R. 1539 (S.C. 1974)……....4
5. Anjali Bhardwaj and Ors. vs. Union of India (UOI) and Ors., M.A.N.U. 209 (S.C. 2019).8
6. Ashok Kumar Pandey v. State of West Bengal, AIR 2004 SC 1923 (India)……………...3
7. Assam SanmilitiaMahasangh and Ors v. Union of India and Ors., 3 S.C.C. 1 (2015)……5
8. AssemTakyar v. Prime Minister National Relief Fund SCC OnLine Del 9191……….9,10
9. Association for Democratic Reforms v. UOI, A.I.R. 126 (Del. 2001)………………….....8
10. Association of Unified Tele Services Providers and Ors, v. UOI, M.ANU 328 (SC
2014)………………………………………………………………………………….…..14
11. Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 S.C.C. 726 (India)………..…..1
12. BALCO Employees Union (Regd.) v. Union of India, (2002) 2 SCC 333………………..3
13. Calcutta Gas Co. Ltd. v. State of West Bengal, A.I.R. 1044 (S.C. 1962)…………….…3,4
14. CBSE v. Aditya Bandopadhayay, 8 S.C.C. 497 (2011)………………………………..8,16
15. Central Board of Secondary Education & another v Aditya Bandopadhyaya& others
(2011)8 SCC 497 (India)………………………………………………………...………...7
16. Centre for Earth Science Studies, Trivuvananthapuram v Dr. Mrs. Anson Sabastian, RTI
Digest IV (2010) 105………………………………………………………………………8
17. Centre for Public Interest Litigation vs. Union of India (UOI) (18.08.2020 -
SC)……………………………………………………………………………7,11,12,13,15
18. Chief Information Commissioner v. State of Manipur, A.I.R. 864 (S.C. 2012)…….…….8
19. Chief Information Commissioner vs. High Court of Gujarat and Ors., M.A.N.U. 275 (S.C.
2020)……………………………………………………………………………………….9
20. Common Cause, A registered Society v. Union of India and Others,
MANU/SC/0731/2005……………………………………………………………….…….5
21. D.A.V College Trust and Management Society and Ors vs. Director of Public Instructions
and Ors, AIR 2019 SC 4411 (India)………………………………………………...….8,11
22. Dhakeswari Cotton Mills Ltd. v CIT West Bengal, (1955) AIR 65 (SC)…………….…...4
23. Federation of Bar Association in Karnataka v. Union of India, (2000) 6 S.C.C. 715…..…3

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24. Fertilizer Corp. Kamgar Union v. Union of India, A.I.R. 344 (S.C. 1981)…………….…4
25. Gaurav Kumar Bansal v. Union of India and Ors, (2017) 6 SCC 730…………………...14
26. Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta and Ors., A.I.R.
367 (S.C. 1955)……………………………………………………………………………5
27. ICAI v. Shaunak, 8 S.C.C. 781 (2011)………………………………………………….....8
28. Jayender Vishnu Thakur v. State of Maharashtra, (CRL.) no. 6374 of 2007………….....19
29. KanubhaiBrahmbhatt v State of Gujarat AIR 1987 SC 1159…………………………...1,2
30. Karnataka Public Service Commission v. B.M. Vijay Shankar 1992 AIR 952, SCR (1)
668……………………………………………………………………………..………....20
31. Kasturilal v. State of UP, A.I.R. 1965 S.C. 1039 (India)……………………………….....5
32. L. Chandrakumar V. Union of India AIR 1997 SC 1125……………………………….....1
33. M/S Hcl Info. systems Ltd vs State of Raj and Ors on 23 July, 2019………………….….2
34. Magan Bhai v. Union of India, (1970) 3 S.C.C. 400 (India)………………………….....4,5
35. Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546……………………….…3
36. Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621………………..…20
37. Mulla Gulam Ali &Safiabai D. Trust v. Deelip Kumar & Co, (2003) 11 SCC 772…..…14
38. Mulla Gulam Ali &Safiabai D. Trust v. Deelip Kumar & Co. (2003) 11 SCC 772……..10
39. P. and O. Navigation Company v. Secretary of State for India, (1868-69) 5 Bom. H.C.R.
App. A. 1 (India)………………………………………………………………………......5
40. People's Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399: JT
(2003) 2 SC 528: AIR 2004 SC 1442…………………………………………………...…7
41. PN Kumar v. Municipal Corp of Delhi, 1988 S.C.R (1) 732 (India)………………….…..1
42. Poorna Prajna Public School v Central Information Commission, W.P NO. 7265 of
2007………………………………………………………………………………………..7
43. PUCL v. Union of India, 4 S.C.C. 399 (2003)………………………………………..…...8
44. R v Sussex Justices ex parte McCarthy [1924] 1 KB 256……………………………..…20
45. Rabindranath Bose v. UOI, 1 S.C.C. 84 (1979)………………………………………..….3
46. Rajendra Vasantlal Shah v. Central Information Commissioner and Ors. AIR 2011 Guj
70…………………………………………………………………………………………15
47. Rakesh Kumar Singh and others v. Harish Chander, Assistant Director and others
MANU/CI/246/2007……………………………………………………………………..16
48. Rakesh Sanghi v. International Advanced Centre for Powder Metallurgy & New
Materials, Hyderabad F.No, CIC/AT/A/2007/01363…………………………………...…7
49. Ram Jethmalani v. UOI, A.I.R. 1 (S.C. 2011)………………………………………...…...8

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50. Ram Krishna Verma v. Province of U.P, 1992 AIR 1888, 1992 SCR (2) 378……….….20
51. Ramjilal v. Income Tax Officer, AIR 1951 SC 97………………………………………...3
52. S.K. Sinha v. Patna University A.I.R. 1965 Pat. 253……………………………………...1
53. S.P. Gupta v. President of India and Ors., A.I.R. 149 (S.C. 1982)………………………..8
54. Sachidanand Pandey v. State of West Bengal, 2 S.C.C. 295 (1987)………………………5
55. Secretariat v. Nitish Kumar Tripathi,LQ 2012 HC 11008……………………………….13
56. Secretary General, Supreme Court v. Subhash Chandra Agarwal, AIR 2010 Delhi 159,
166…………………………………………………………………………………………7
57. Secretary, Govt. of India v. Alka ShubhashGadia, 1990 S.C.R, Supl. (3) 583 (India)…....1
58. Shekhar Chandra v State Information Commissioner, Bihar AIR 2012 Pat 60…………...7
59. State of Rajasthan v. Vidyawati, A.I.R. 1962 S.C. 933 (India)…………………………....6
60. State of U.P. v. Raj Narain, A.I.R. 865 (S.C. 1975)…………………………………….....8
61. State of West Bengal v. Ratnagiri Engineering Private Limited, 4 S.C.C. 453 (2010)…...4
62. Thalappalam Service Cooperative Bank Limited and Ors v. State of Kerala and Ors
MANU/SC/1020/2013: (2013) 16 SCC 82, (India)……………………………………...13
63. The Hindu Urban Cooperative Bank Ltd, v. The State Information Commission and Ors,
(2011) ILR 2Punjab and Haryana……………………………………………………......10
64. The Institute of Chartered Accountants of India vs. Shaunak H. Satya and Ors., A.I.R.
1006 (S.C. 2011)…………………………………………………………………………..9
65. TilokchandMotichand v. H.B. Munshi, 1 S.C.C. 110 (1969)…………………………...3,5
66. Union of India v. Association for Democratic Reforms, A.I.R. 2112 (S.C. 2002)………..8
67. Union of India v. Paul Manickam, A.I.R. 2003 S.C. 4622 (India)………………………1,5

STATUTES:

 COMPANIES ACT, 2013

 FOREIGN CONTRIBUTION (REGULATION) ACT, 2010
 INCOME TAX ACT, 1961
 NATIONAL DISASTER ACT, 2005
 RIGHT TO INFORMATION ACT, 2005
 THE CONSTITUTION OF INDIA, 1950
 THE INDIAN TRUST ACT, 1882
 THE STATE EMBLEM ACT, 2005

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BOOKS:

 J.N. Pandey, CONSTITUTIONAL LAW OF INDIA publication by Central Law Agency.

 K D Gaur Textbook on INDIAN PENAL CODE (6th edition) Universal Law Publishing
 M.P. Jain, CONSTITUTIONAL LAW OF INDIA, Lexis Nexis, 8th edition. Lexis Nexis
 Narender Kumar’s Constitutional Law Of India, (10th Edition) Allahabad Law Agency
 PRINCIPLE OF STATUTORY INTERPRETATION, Justice G P Singh, 14th edition.
Publication Lexis Nexis
 R. V. Kelkar’s CRIMINAL PROCEDURE 6th edition EBC
 TL Venkatarama Aiyar, EQUALITY BEFORE LAW (Year Book of Legal Studies, 1960)
LEXICON:

 WHARTON’S LAW DICTIONARY (15th Edition)

 Bryan A. Garner, BLACK‟S LAW DICTIONARY, (2nd ed., 2004)

JOURNALS & ARTICLES:

Journals;

 COMPARATIVE STUDY OF COVERAGE OF PUBLIC AUTHORITIES UNDER RTI

IN DIFFERENT COUNTRIES By Shreya Saxena IV semester, BA LLB (Hons)
Vivekananda Law School, Vivekananda Institute of Professional, Studies (VIPS),
Pitampura GGSIPU- Delhi)
 Muhammad Zubair, Sadia Khattak, The Fundamental Principles of Natural Justice in
Administrative Law, ISSN: 2090-4274 Journal of Applied Environmental and Biological
Sciences, available at http://www.textroad.com/
 RESEARCH PAPER ON POWERS UNDER RIGHT TO INFORMATION ACT, 2015
AND HOW IT IS USED BY CENTRAL INFORMATION COMMISSION BY
DEVESH BADOLIYA, RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,
PUNJAB. 22ND JULY 2019
 Shalini Singh & Dr. Bhaskar Karn, The Implementation of Right to Information Act,
2005 in India, 4 JOURNAL OF LAW, POLICY AND GLOBALIZATION, 2012
 Smita Srivastava, The Right to Information in India: Implementation and Impact, 1
AFRO ASIAN JOURNAL OF SOCIAL SCIENCES, 2010.
 Taking Human Rights Forward PEOPLE’S UNIONS FOR CIVIL LIBERTIES (PUCL)
Judgement/61, also at Role of RTI Act in making governance accountable and transparent
Kamla, The Indian Journal of Political science, vol.73, No.2 (april-june 2012) pp.321-
330. Published at- Indisn political science association.

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 THE RIGHT TO INFORMATION ACT IN INDIA: ITS CONNOTATIONS AND

IMPLEMENTATION By Varsha Khanwalker, The Indian Journal of Political Science
Vol. 72, No. 2 (April - June, 2011), pp. 387-393 (7 pages) Published By: Indian Political
Science Association available at https://www.jstor.org/stable/42761423
 THE RIGHT TO INFORMATION ENDEAVOUR FROM SECRECY TO
TRANSPARENCY AND ACCOUNTABILITY By Jeet Singh Mann, Assistant Professor
of Law, National Law University, Delhi. Vol.6: No.1, NALSAR Law Review.
 Transparency in corporate, co-operative, trusts and public private partnerships
CENTRAL INFORMATION COMMISSION 2019 Submitted by: Ayush Rastogi
National Law University, Nagpur.

Articles;

 DIVYAM NANDRAJOG, The PM CARES Fund: Excused from India’s Laws, available
at https://www.article-14.com/post/the-pm-cares-fund-excused-from-india-s-laws
 Donation FAQs, PM CARES, https://www.pmcares.gov.in/en/web/page/faq
 Lex-Start, Donations made to PM CARES fund to be included in CSR available at
https://medium.com/@Lexstart_India/donations-made-to-pm-cares-fund-to-be-included-
in-csr-6e8b2dbcb157
 Position of Fundamental Rights in the World of Privatization, Globalization and
Industrialization; written by ANUBHA NLIU; available at
http://www.legalservicesindia.com/article/1525/Position-of-Fundamental-Rights-In-The-
World-of-Privatization,-Globalization-and-Industrialization.html
 Priscilla Jebaraj, PMCARES Fund gets FCRA exemption without meeting pre-condition
of CAG audit, available at https://www.thehindu.com/news/national/pm-cares-fund-gets-
fcra-exemption-without-meeting-pre-condition-of-cag-audit/article32584371.ece
 Shemin joy, Donations to PM-CARES comes under CSR but not CM Relief Fund:
Government attracts criticism available at
https://www.deccanherald.com/national/donations-to-pm-cares-comes-under-csr-but-not-
cm-relief-fund-government-attracts-criticism-824076.html
 Shishir Sinha, Contributions to PM CARES Fund will be considered as CSR: Centre,
available at https://www.thehindubusinessline.com/economy/policy/contributions-to-pm-
cares-fund-will-be-considered-as-csr-centre/article31684769.ece

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 Should Pm Funds Be Shunned From The Ambit Of RTI Act, 2005?, Athith Pradeep
Alliance University, See discussions, stats, and author profiles for this publication at:
https://www.researchgate.net/publication/343152605
 Guidelines for Indian Government Websites, GOVERNMENT OF INDIA available at
https://web.guidelines.gov.in/2-2-government
domains#:~:text=1,to%20the%20gov.in%2F

DATABASES:

 www.lawjournal.com
 https://home.heinonline.org/
 www.legalservice.com
 www.scconline.com
 www.manupatra.com
 www.supremecourtcaselaw.com
 www.judis.nic.in
 www.IndianKanoon.com

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Shire has the jurisdiction in this matter under Art. 32 of the
Constitution of Shire which reads as follows:

Article 32 Remedies for enforcement of rights conferred by this Part-

Clause (1) “The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed

Clause (2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred
by this Part.”

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STATEMENT OF FACTS

THE BACKGROUND

“The Republic of Shire” (hereinafter, referred to as Shire) is a democratic country in South

Asia with a population of 135.26 crores and Pemberton as its capital city. Shire has a quasi-
federal system and a written constitution which forms the Grund-norm of the country. In
2020, a virus outbreak resulted in the death of over 12 lakh people around the world and the
same, identified as Severe Acute Respiratory Syndrome Coronavirus-2 (hereinafter 'virus'),
affected more than 8 lakh people in Shire.

CREATION OF PM CARES FUND

During the COVID-19 pandemic, the Prime Minister's Office of Shire (PMOS) received
several requests from the public to set up an emergency fund that could be used to curb
impact of COVID-19 in future. Accordingly, PMOS created ‘PM SEVA Fund’ with primary
objective of dealing with any kind of emergency or distress. On the 25th of August 2020,
Ministry of Corporate Affairs released a notification allowing for the inclusion of donations
made to the PM SEVA Fund as an eligible CSR expenditure under the Companies Act, 2013.

OFFSHORE DONATION

Mr. Sarkar Shah is a Shiren based Businessman and the Chief Executive Officer at the
Credentia Industries Ltd. On the day, the notification by the Ministry was released, Mr. Shah,
via the company accounts, donated about Rs. 500 crores to the PM SEVA Fund. Mr. Lalit
Beriwal, Mrs. Anandiben Kocchar and Mr. Rohit Varma own companies based in the United
Federation of Ambrosia, Uqbar Kyrat and Coandxi, respectively. Convinced by the words of
Mr. Shah, Mr.Beriwal, Mrs. Kocchar and Mr. Varma donate Rs. 400 crores, Rs. 300 crores
and Rs. 200 crores, respectively, to the PM SEVA Fund.

REJECTION OF RTI & FILLING PIL BEFORE THE SUPREME COURT

Mr. Prakash Roshan, an activist and a public-spirited person, runs a non-governmental

organization called “Organization for National Empowerment”. He decides to file an RTI
under the Right to Information Act, 2005 seeking transparency in PM SEVA Fund and for
information of money received and spent. However, the RTI was rejected citing that the PM
SEVA Funds do not constitute as a “public authority.” Aggrieved by this, Mr. Roshan files a
Public Interest Litigation before the Supreme Court of Shire.

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ISSUES RAISED

ISSUE-I

WHETHER THE PETITION IS MAINTAINABLE AND WHETHER THE

PETITIONER HAS A LOCUS STANDI IN THE CASE?

ISSUE-II

WHETHER THE ACTIONS OF THE GOVERNMENT IN MANAGING THE PM

SEVA FUND VIOLATE THE PRINCIPLES OF ACCOUNTABILITY AND
TRANSPARENCY?

ISSUE-III

WHETHER A ‘FUND,’ CONSOLIDATED OR OTHERWISE, FORMULATED BY

THE GOVERNMENT FALLS WITHIN THE PURVIEW OF TRANSPARENCY
NORMS?

ISSUE-IV

WHETHER THE GOVERNMENT HAS ANY AUTHORITY TO RECEIVE

OFFSHORE DONATIONS?

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SUMMARY OF ARGUEMENTS

1. Whether the petition is maintainable and whether the petitioner has a locus standi in
the case?

It is humbly contended that the PIL piled by the Mr. Roshan is not maintainable before the
Hon’ble Supreme Court of Shire on the following grounds: firstly, the petition has not
exhausted the alternative remedies. Secondly, There has been no violation of fundamental
rights. Thirdly, The present petition does not carry a substantial question of law. Fourthly,
The petitioner does not have a locus standi and lastly, The Act of Government was Sovereign
Act.

2. Whether the actions of the government in managing the PM SEVA fund violate the
principles of accountability and transparency?
It is humbly contented before this Hon’ble Supreme Court that the actions of the government
in managing the PM SEVA Fund not violating the principles of accountability and
transparency on the following ground; firstly, it is not a violation of right to know under
Art.19(1) (a) as it is not absolute in nature. Secondly, PM SEVA fund is not substantially
financed by the Central Government of Shire and lastly, PM SEVA Fund as public charitable
trust does not fall within RTI Act, 2005.

3. Whether a ‘Fund’ Consolidated or otherwise, formulated by the government falls

within the purview of transparency norms?
It is humbly contended before this Hon’ble Supreme Court that the a ‘Fund,’ consolidated or
otherwise, formulated by the government not falls within the purview of transparency norms
on the following grounds; firstly, the PM SEVA Fund doesn’t fall within the definition of
public authority. Secondly, the PM SEVA Fund constituted as a Public Charitable trust and
lastly, the PM SEVA Fund falls within the sec.8 (I)(e) of the Right to information (RTI) Act,
2005.

4. Whether the government has any authority to receive offshore donations?

It is humbly Submitted before the Hon’ble Court that the government has authority to receive
the offshore donation on the following grounds: firstly, PM SEVA fund within the ambit of
FCRA. Secondly, PM SEVA fund in the ambit of CSR expenditure. Thirdly, There was no
violation of Article 14 and lastly, there was no violation of natural justice.

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ARGUMENTS ADVANCED

1. WHETHER THE PETITION IS MAINTAINABLE AND WHETHER THE

PETITIONER HAS A LOCUS STANDI IN THE CASE?

[¶1] It is humbly contended that the PIL piled by the Mr. Roshan is not maintainable before
the Hon’ble Supreme Court of Shire on the following grounds: firstly, the petition has not
exhausted the alternative remedies [1.1]. Secondly, There has been no violation of
fundamental rights [1.2]. Thirdly, The present petition does not carry a substantial question of
law [1.3]. Fourthly, The petitioner does not have a locus standi [1.4] and lastly, The Act of
Government was Sovereign Act [1.5].

[1.1] The petitioner has not exhausted the alternative remedies

[¶2] It has been held that since Art. 32 confers “extraordinary” jurisdiction which shall be
brought into use where there is no alternate efficacious remedy is available. 1 Alternative
remedy has not been exhausted by the side of petitioner available under Art. 226 of the Shire
Constitution and the High Court competent enough to hear this particular case by the virtue
of L. Chandra kumar V. Union of India2. Alternative remedy is a bar unless there was
complete lack of jurisdiction in the officer or authority to take action impugned, 3 however,
the existence of a competent body to hear this particular case questions the maintainability of
the writ petition filed.

[¶3] In Kanubhai Brahmbhatt v. State of Gujarat4 the Supreme Court held that a petitioner
claiming of infraction of his fundamental right should approach High Court rather Supreme
Court in the first instance as High Court under Art. 226 has much wider than the powers of
the Supreme Court under Art.32 of the Constitution.5 In S.K. Sinha v. Patna University6, the
petition under Article 32 was denied on the ground that there existed an equal and efficacious
remedy under the University Act.

1
Secretary, Govt. of India v. Alka Shubhash Gadia, 1990 S.C.R, Supl. (3) 583 (India); Avinash Chand Gupta v.
State of Uttar Pradesh, (2004) 2 S.C.C. 726 (India); Union of India v. Paul Manickam, A.I.R. 2003 S.C. 4622
(India).
2
L. Chandrakumar V. Union of India AIR 1997 SC 1125.
3
A.V. Venkateshwaran v. R.S.Wadhwani AIR 1961 SC 1906
4
Kanubhai Brahmbhatt v. State of Gujarat, A.I.R. 1987 S.C. 1159 (India).
5
PN Kumar v. Municipal Corp of Delhi, 1988 S.C.R (1) 732 (India).
6
S.K. Sinha v. Patna University A.I.R. 1965 Pat. 253.

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[¶4] Having submitted that, it is important to view the idea of 'alternative remedies' in
practical light. The Supreme Court has a significantly large backlog of cases. The Supreme
Court can reject a petition on the grounds that there exists an alternative remedy and will not
grant relief. Only where the petition raises important questions of the interpretation of
statutory provisions or rules which it is in the public interest to decide speedily, where there
is a failure of justice due to a misreading of the provisions of an Act.

[¶5] The Counsels finally submits that, this Hon’ble full bench has all the powers to refuse to
hear the petitions on grounds of non-maintainability as there is no violation of fundamental
rights and also the alternative remedies has not been exhausted.

[1.1.1] Petitioners must ensure and maintain the hierarchical system of the Court of law

[¶6] It is humbly contended before this Hon’ble court that petitioner should have to follow
the hierarchy of court and give the same importance to the High court as they give to the
Supreme Court. In Kanubhai Brahmbhatt v State of Gujarat7,a division bench of the Supreme
Court observed that a petitioner complaining of infraction of his Fundamental Right should
approach the High Court first rather than the Supreme Court in the first instance, the reason
for such an observation as given was that there was a huge backlog of cases pending before
the Supreme Court.

[¶7] Article 226 can be invoked not only for the enforcement of Fundamental Rights but for
‘any other purpose’ as well. Given the wider jurisdiction of High Court under Article 226, it
is reasonable to expect petitioners to approach the High Court having locus other than
enforcement of Fundamental Rights. The doctrine of exhaustion of remedies prevents a
litigant from seeking a remedy in a new court or jurisdiction until all claims or remedies have
been exhausted (pursued as fully as possible) in the original one 8.

[¶8] Looking upon the circumstances, petitioners just trying to skip the judicial hierarchy of
the court or it may be the reason that they not trust on the adjudication of High Courts even
they have the options to appeal after the adjudication of High court, if they not satisfied with
the judgement of the High court. So, these all reasons and grounds are sufficient to show that
the petitions filed under Article 32 are not maintainable before this Hon’ble Supreme Court.

[1.2]. There has been no Violation of Fundamental Rights

7
Kanubhai Brahmbhatt v State of Gujarat AIR 1987 SC 1159
8
M/S Hcl Info. systems Ltd vs State of Raj and Ors on 23 July, 2019

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[¶9] When a person acquires a locus standi, he has to have a personal or individual right
which was violated or threatened to be violated.9 The question as to when SC should entertain
claim depends on the nature of fundamental right alleged to have been infringed and remedy
claimed. 10

[¶10] The Jurisdiction under Article 32 can be invoked only when Fundamental Rights are
violated.11 PIL writ petition can be filed in the Supreme Court under Article 32 only if a
question concerning enforcement of a Fundamental Right.12 It has been held that if a right,
other than a fundamental right is claimed to be violated then such questions can be addressed
only in the appropriate proceedings and not on an application under Art. 32. 13 Thus, where
there is no infringement of Fundamental Right or scope for enforcement of any Fundamental
Right, the writ petition is not maintainable on the fragile ground.14

[¶11] Drawing Inference from this case, it can be said that present petition is not
maintainable as the 'right to know' is not absolute. Restrictions on the disclosure of
information under the RTI Act also constitute restrictions on the information applicant's 'right
to know' which is protected Under Article 19(1) (a) of the Constitution. The constitutional
permissibility of the statutory restrictions on disclosure contained within the RTI Act is not in
challenge before this Court. It has been held that if a person who comes to the Court with a
PIL with vested interests, improper motion are not entitled to file PIL 15.

[1.3] The present petition does not carry a substantial question of law

[¶12] It is most respectfully submitted before the Hon’ble Supreme Court of Shire that the
instant petition is not maintainable as PIL Writ petition only entertain when fundamental
right has been violated or threat to be violated. In the present PIL Writ petition there are no
exceptional or special circumstances exist for case to be maintainable. It will not be granted if
there is no failure of justice or when substantial justice is done. Article 32 does not give a

9
Calcutta Gas Co. Ltd. v. State of West Bengal, A.I.R. 1044 (S.C. 1962)
10
Tilokchand Motichand v. H.B. Munshi, 1 S.C.C. 110 (1969); Rabindranath Bose v. UOI, 1 S.C.C. 84 (1979).
11
Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546; BALCO Employees Union (Regd.) v. Union
of India, (2002) 2 SCC 333
12
MP JAIN 8TH EDN PAGE MP JAIN, INDIAN CONSTITUTIONAL LAW 1429 (8th Edition Lexis Nexis,
2018)
13
Ramjilal v. Income Tax Officer, AIR 1951 SC 97
14
Federation of Bar Association in Karnataka v. Union of India, (2000) 6 S.C.C. 715 (India)
15
Ashok Kumar Pandey v. State of West Bengal, AIR 2004 SC 1923 (India)

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right to a party to approach the S.C without the violation of fundament rights rather it confers
wide discretionary power on the SC to take Suo Moto Cognizance in suitable cases16.

[¶13] Also in the present case, no substantial question of law is involved and interference is
based on pure question of fact which is entitled to be dismissed. A mere existence of
substantial question of law is not sufficient unless serious injustice of the substantial nature
has been occasioned 17. The Supreme Court, however, does not entertain the PIL Writ petition
when there was no violation of fundamental right and when there is no substantial question of
law. It does so only when exceptional and special circumstances exist, substantial and grave
injustice has been done.

[¶14] Further, it is humbly submitted before the Hon’ble Court that PM SEVA fund is a
public charitable Trust and not comes under the ambit of section 2(h) of the RTI Act. So,
there is no substantial question of law existing in the present petition and this petition entitled
to be dismissed.

[1.4] The petitioner does not have a locus standi

[¶15] It is humbly contended that petitioner does not have a locus standi as no action lies in
SC under Art. 32 unless there is an infringement of a Fundamental Right 18 as the SC has
previously emphasized that “The violation of Fundamental Right is sine qua non of exercise
of right conferred by Art. 32.”19 A person acquires a locus standi, when he has to have a
personal or individual right which has been violated or threatened to be violated. 20

[¶16] Since, no right of petitioner has been infringed he has no locus standi before the Court.
Where writ petition is challenging Constitutional validity of any provision, then the petitioner
should file writ petition before High Court under Art.226 of Constitution. 21 Mere
apprehension that petitioner would be deprived of his Fundamental Right is not enough to
invoke jurisdiction under Art. 32.22

[¶17] In Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta and Ors 23,
SC held that only a person aggrieved can impugn any given piece of legislation under Art. 32.

16
Dhakeswari Cotton Mills Ltd. v CIT West Bengal, (1955) AIR 65 (SC).
17
Hon’ble Justice Bhanwar Singh, Criminal Appeals, JTRI Journal, 1995.
18
Andhra Industrial Works v. Chief Controller of Imports, A.I.R. 1539 (S.C. 1974).
19
Fertilizer Corp. Kamgar Union v. Union of India, A.I.R. 344 (S.C. 1981).
20
Calcutta Gas Co. Ltd. v. State of West Bengal, A.I.R. 1962 S.C. 1044 (S.C. 1962).
21
State of West Bengal v. Ratnagiri Engineering Private Limited, 4 S.C.C. 453 (2010).
22
Magan Bhai v. Union of India, 3 S.C.C. 400 (1970).
23
Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta and Ors., A.I.R. 367 (S.C. 1955).

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In Sachidanand Pandey v. State of West Bengal24, courts must restrict free flow of case under
attractive name of PIL. The maintainability of a petition under Article 32 of Shire depends on
facts of each case. 25

[¶18] Mere apprehension that the petitioner would be deprived of his Fundamental Right is
not enough to invoke the jurisdiction of the Court under Art. 32.26 Unless satisfactory reasons
are Shire in this regard, filing of petition in such matters directly under Art. 32 of the
Constitution is to be discouraged27.

[1.5] The Act of Government was Sovereign Act

[¶19] Sovereign function is those action of the state for which it is not answerable before the
court of law. Matters like defence of the Country, raising and maintaining armed forces,
making peace in retaining territory, etc comes under the sovereign function of the state. In the
case of Peninsular and oriental steam Navigation company v. Secretary of state for India28
the question of the liability of state was discussed where the Supreme Court affirmed that the
secretary for the state i.e., the state shall only be liable for the acts of non-sovereign nature.

[¶20] In case of State of Rajasthan v. Vidyawati 29 was held that the immunity of state action
can only be claimed if the act in question was done in the course of the exercise of sovereign
action. Further the case of Kasturilal v. State of UP30, the Court unanimously held that the
government cannot be held liable in case the act involved was a sovereign function.

[¶21] In welfare state the function of the state are not only defence of the country or
administration of justice or maintaining law and order but it extends to regulating and
controlling the activities of people in almost every sphere, educational, commercial, social,
economic, political and even marital. The demarcating line between sovereign and non-
sovereign powers for which no rational basis survives has largely disappeared. 31

[¶22] Further, it is humbly submitted before the Hon’ble Supreme Court of Shire that the
government establish the “PM SEVA Fund” in Sovereign Function to tackle with the Covid-

24
Sachidanand Pandey v. State of West Bengal, 2 S.C.C. 295 (1987).
25
Assam SanmilitiaMahasangh and Ors v. Union of India and Ors., 3 S.C.C. 1 (2015); Tilokchand Motichand v.
H.B. Munshi, 1 S.C.C. 110 (1969).
26
Magan Bhai v. Union of India, (1970) 3 S.C.C. 400 (India).
27
Union of India v. Paul Manickam, A.I.R. 2003 S.C. 4622 (India).
28
P. and O. Navigation Company v. Secretary of State for India, (1868-69) 5 Bom. H.C.R. App. A. 1 (India).
29
State of Rajasthan v. Vidyawati, A.I.R. 1962 S.C. 933 (India).
30
Kasturilal v. State of UP, A.I.R. 1965 S.C. 1039 (India).
31
Common Cause, A registered Society v. Union of India and Others, MANU/SC/0731/2005

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19. It is most humbly submitted before the Hon’ble SC that PM SEVA fund is not a public
authority under the ambit of section 2(h) of the “Right to Information Act, 2005 32.

[¶23]Keeping in mind the need for having a dedicated national fund with the primary
objective of dealing with any kind of emergency or distress situation, like posed by the
COVID-19 pandemic, and to provide relief to the affected, a public charitable trust under the
name of “Prime Minister’s Security and Enlightenment for values and Amity Fund”has been
set up. Further, the PM SEVA Fund established under the Sovereign function then this
present PIL is not maintainable before the Hon’ble S.C of Shire.

Hence, it is humbly submitted that the PIL filed by the Mr. Roshan is not maintainable and
petitioner has no locus standi before the Hon’ble Supreme Court of Shire

2. WHETHER THE ACTIONS OF THE GOVERNMENT IN MANAGING THE PM

SEVA FUND VIOLATE THE PRINCIPLES OF ACCOUNTABILITY AND
TRANSPARENCY?

[¶24] It is humbly contented before this Hon’ble Supreme Court that the actions of the
government in managing the PM SEVA Fund not violating the principles of accountability
and transparency on the following ground; firstly, it is not a violation of right to know under
Art.19(1) (a) as it is not absolute in nature [2.1]. Secondly, PM SEVA fund is not
substantially financed by the Central Government of Shire [2.2] and lastly, PM SEVA Fund
as public charitable trust does not fall within RTI Act, 2005 [2.3].

[2.1] it is not a violation of right to know under Art.19 (1) (a) as it is not absolute in
nature

[¶25] The 'right to know' is not absolute. The RTI Act envisages certain restrictions on the
'right to know' in the form of exemptions enumerated in Clause (1) to Section 8. Crucially,
restrictions on the disclosure of information under the RTI Act also constitute restrictions on
the information applicant's 'right to know' which is protected Under Article 19(1) (a) of the
Constitution. The constitutional permissibility of the statutory restrictions on disclosure
contained within the RTI Act is not in challenge before this Court. But it is trite to state that

32
https://pmcares.gov.in

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any restrictions on the disclosure of information would necessarily need to comport with the
existing law on the protection of the 'right to know' as a facet of the freedom of expression. 33

[¶26] In the case of Rakesh Sanghi v. International Advanced Centre for Powder Metallurgy
& New Materials, Hyderabad 34 wherein the CIC held that the citizen’s right to seek
information is not absolute but is conditioned by the Government’s right to invoke
exemptions, wherever such exemption applicable. The Court held that right of information is
a facet of the freedom of 'speech and expression' as contained in Article 19(l) (a) of the
Constitution of India. Thus, indisputably it is a fundamental right. The Court also observed
that every right legal or moral carries with it a corresponding obligation. It is subject to
several exemptions/ exceptions indicated in broad terms. 35

[¶27] Further in the case of Central Board of Secondary Education & another v Aditya
Bandopadhyaya & others36 the Supreme Court observed that the information which is not
held by or under the control of any public authority and which cannot accessed by any public
authority under any law the time being in force, does not fall within the scope of RTI Act.

[¶28] The High Court of Patna also expressed a similar view in Shekhar Chandra v State
Information Commissioner, Bihar37 and observed that the RTI contemplates giving only such
information which is available and held in records it does not expect the public authority to
first carry out an enquiry and 'collect "collate" information and then make it available to the
applicant. Section 8 contains a well defined list of ten kinds of matters that cannot be made
public. A perusal of the provisions of Section 8 reveals that there are certain information
contained in sub-clauses (a), (b), (c), (f), (g) and (h), for which there is no obligation for
giving such an information to any citizen. 38

[¶29] These information, thus, have limited protection, the disclosure of which is dependent
upon the satisfaction of the competent authority that it would be in larger public interest as
against the protected interest to disclose such information. 39 The Kerala High Court held that

33
Centre for Public Interest Litigation vs. Union of India (UOI) (18.08.2020 - SC): MANU/SC/0595/2020
34
Rakesh Sanghi v. International Advanced Centre for Powder Metallurgy & New Materials, Hyderabad F.No,
CIC/AT/A/2007/01363
35
People's Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399: JT (2003) 2 SC 528: AIR
2004 SC 1442
36
Central Board of Secondary Education & another v Aditya Bandopadhyaya & others (2011)8 SCC 497
(India)
37
Shekhar Chandra v State Information Commissioner, Bihar AIR 2012 Pat 60
38
Secretary General, Supreme Court v. Subhash Chandra Agarwal, AIR 2010 Delhi 159, 166
39
Poorna Prajna Public School v Central Information Commission, ibid W.P NO. 7265 of 2007

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Section 8(l)(e) dealt with information available with the person in his fiduciary relationship
with another. Information under this head is nothing but information in trust which put for the
relationship would not have been conveyed or known to the person concerned.40

[¶30] Further in this regard when the conversation moves to Religious Trust Justice Challa
Kodanda Ram of the Hyderabad High court held that unaided religious Trusts which are not
substantially financed by appropriate government do not fall under the ambit of Public
Authority. 41 Usually trusts primary source of income is the money they receive from public
as donations and they main objective they work under is to serve the society.

[¶31] It also contended that the expression “freedom of speech and expression” in Article
19(1) (a) has been held to include the right to acquire information and disseminate the same. 42
The rights of the citizens to obtain information on matters relating to public acts flows from
the Fundamental Right enshrined in Article 19(1) (a).43 The right to receive information,
which is basically founded on the right to known, is an intrinsic part of the right to freedom
of speech and expression44 as without adequate information, a person cannot form an
informed opinion.45

[¶32] The right to information regarding the functioning of public institutions is a

fundamental right as enshrined in Article 19 of the Constitution of India. 46 This Court is
further of the opinion that if any information can be accessed through the mechanism
provided under another statute, then the provisions of the RTI Act cannot be resorted to as
there is absence of the very basis for invoking the provisions of RTI Act, namely, lack of
transparency. In other words, the provisions of RTI Act are not to be resorted to if the same
are not actuated to achieve transparency. 47 There are other provisions of the RTI Act which
support the said position, namely, Sections 4(2), (3) and (4) which contemplate that if
information is disseminated then the public will have minimum resort to the use of the RTI

40
Centre for Earth Science Studies, Trivuvananthapuram v Dr. Mrs. Anson Sabastian, RTI Digest IV (2010)
105
(Kerla HC on 17.02.2010)
41
D.A.V College Trust and Management Society and Ors vs. Director of Public Instructions and Ors, AIR 2019
SC 4411 (India)
42
MP JAIN, Indian Constitutional Law, Fifth edition, pg no. 1062.
43
PUCL v. UOI, 4 S.C.C. 399 (2003).
44
Chief Information Commissioner v. State of Manipur, A.I.R. 864 (S.C. 2012); Ram Jethmalani v. UOI, A.I.R.
1 (S.C. 2011); ICAI v. Shaunak, 8 S.C.C. 781 (2011); CBSE v. Aditya Bandopadhayay, 8 S.C.C. 497 (2011)
45
Association for Democratic Reforms v. UOI, A.I.R. 126 (Del. 2001)
46
State of U.P. v. Raj Narain, A.I.R. 865 (S.C. 1975), S.P. Gupta v. President of India and Ors., A.I.R. 149 (S.C.
1982), Union of India v. Association for Democratic Reforms, A.I.R. 2112 (S.C. 2002); PUCL v. Union of
India, 4 S.C.C. 399 (2003).
47
Anjali Bhardwaj and Ors. vs. Union of India (UOI) and Ors., M.A.N.U. 209 (S.C. 2019).

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Act to obtain information. 48 The public authorities owe a duty to disseminate the information
widely suo-moto to the public so as to make it easily accessible to the public. 49 If a public
authority has any information in the form of data or analyzed data, or abstracts, or statistics,
an applicant may access such information, subject to the exemptions in Section 8 of the Act.

[¶33] But where the information sought is not a part of the record of a public authority, and
where such information is not required to be maintained under any law or the rules or
regulations of the public authority, the Act does not cast an obligation upon the public
authority, to collect or collate such non-available information and then furnish it to an
applicant50 but in the present case the relevant information is available at the website of PM
CARES Fund. 51

[2.2] PM SEVA fund is not substantially financed by the Central Government of Shire

[¶34] It is most humbly submitted before this court that under section 2(h) 52 of the RTI Act,
2005 the words “public authority” has been defined. The PM SEVA fund is not a
constitutional body for the purposes of Section 2(a) of the Act. This is because the
Constitution of Shire nowhere mentions about establishment of such funds. Moreover it has
not been established under any law passed by the parliament or any of the state legislatures in
the state of Shire. No notification has been issued by the government regarding the
constitution of the PM SEVA fund.

[¶35] The respondent humbly submits that the fund is in the nature of a “Public Charitable
Trust” and therefore the question of ownership of the fund by the central government is
fallacious and baseless. In casu, Aseem Takyar v. Prime Minister's National Relief Fund53 it
was held that “Relevantly, PMNRF cannot be deemed to be “Public Authority” on the
premise that managers of PMNRF i.e. Prime Minister, Deputy Prime Minister, Finance
Ministry do not act in personal capacity. It is so said because these State Functionaries
manage the PMNRF in their ex-officio capacity.

[¶36] If PMNRF is not non-governmental organization, then what is it? Prime Minister or
any of the Managers of PMNRF does not have a legal title or basis to claim ownership of

48
Chief Information Commissioner vs. High Court of Gujarat and Ors., M.A.N.U. 275 (S.C. 2020)
49
The Institute of Chartered Accountants of India vs. Shaunak H. Satya and Ors., A.I.R. 1006 (S.C. 2011).
50
ibid
51
Available at https://www.pmcares.gov.in/en/
52
Right to Information Act 2005 S. 2
53
Assem Takyar v. Prime Minister National Relief Fund SCC OnLine Del 9191

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PMNRF. In fact, PMNRF is a Trust which is neither owned, controlled or financed by the
Government.” In arguendo, the same is the case with the PM SEVA fund. The Prime
Minister or any of the other members do not have a legal title or claim of ownership for the
fund collected. It is a trust that has been made to carry out welfare activities for the people
and patients affected from COVID-19.

[¶37] It is further submitted that in the case of Mulla Gulam Ali & Safiabai D. Trust Vs.
Deelip Kumar & Co.,54 the Hon'ble court itself held that “The mere fact that the control in
respect of the administration of the Trust vested in a group of people will not itself take away
the public character of the Trust.” In arguendo, going by the dictum of the Hon'ble court in
the case at hand it means that because of the mere fact that the fund is being managed by the
Prime Minister and other ministers in their ex-officio capacity, the same would not result into
taking away of the public character of the trust.

[¶38] It has been mentioned under section 2 (h)(d)(i) that a body “owned, controlled or
substantially financed” by the appropriate government will be a public authority. The words
“substantially financed” are of crucial importance in the case at hand. For a body to become a
public authority, substantial funding from the government is an essential prerequisite. In the
Cooperative Societies Case55 it has been said that “…the same would be "substantial"
funding because it comes from the public funds. Hence, whatever benefit flows to the
societies in the form of share capital contribution or subsidy, or any other aid including
provisions for writing off bad debts, as also exemptions granted to it from different fiscal
provisions for fee, duty, tax etc. amount to substantial finance by funds provided by the
appropriate Government, for the purpose of Section 2(h) of the RTI Act.”

[¶39] It is humbly submitted that the PM SEVA fund consists entirely of voluntary
contributions from individuals/organizations and does not get any budgetary support.56
Going by the dictum of the Hon'ble Court in the Cooperative Societies Case, the fund
receives no contribution in any form whatsoever by the government. On this point the
dissenting opinion of Justice Gaur is of crucial importance. In case, Aseem Takyar v. Prime
Minister’s National Relief Fund57, he said, “A bare perusal of the above Preamble (of the

54
Mulla Gulam Ali & Safiabai D. Trust v. Deelip Kumar & Co. (2003) 11 SCC 772
55
The Hindu Urban Cooperative Bank Ltd, v. The State Information Commission and Ors, (2011)ILR 2Punjab
and Haryana
56
About PM CARES Fund, GOVERNMENT OF INDIA available at https://www.pmindia.gov.in/en/about-pm-
cares-fund/
57
Assem Takyar v. Prime Minister National Relief Fund SCC OnLine Del 9191

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PMNRF), makes it amply clear that appellant-Trust is neither constituted by the Parliament
nor by the Government and it is not managed by Government functionaries in their official
capacity, but by multiple delegates.

[¶40] It is relevant to note that contributions flowing out of budgetary sources of Government
are not accepted. The cause for which appellant-Trust was created and exists is purely
charitable and neither the funds of this Trust are used for any Government projects nor is this
Trust governed by any of the Government policies. So, how can this Trust be labeled as
‘Public Authority’. Thus, I am of the considered view that appellant-Trust does not owe its
genesis to a decision or function of Appropriate Government and Funds of appellant-Trust do
not have any government character”. Similarly in the instant case of PM SEVA fund the trust
does not accepts any fund or donations through the budgets. Only voluntary contributions
from the individuals and organizations are accepted for the noble cause helping the affected
and distressed.

[¶41] It is humbly submitted that the court itself in the case of Center for Public Interest
Litigation v. Union of India58 has held that “The PM SEVA Fund consists entirely of
voluntary contributions from individuals/organizations and does not get any budgetary
support. No Government money is credited in the PM SEVA Fund.” Moreover in the case of
Adv. Arvind K. Waghmare v. PM CARES Fund59 the High Court of Maharashtra has also held
the same. It said that “it does not receive any budgetary support or any government money.”

[2.3] PM SEVA Fund as public charitable trust does not fall within RTI Act, 2005

[¶42] It is most humbly submitted before this court that in the case of D.A.V. College Trust
and Management Society and Ors. v. Director of Public Instructions and Ors,60 the court
itself has held that public charitable trust shall also come under the purview of the RTI Act,
2005. They will be deemed as public authorities within the meaning of Section 2(h) of the
Act. But the court has also laid down some essentials which shall be duly proven for a trust to
qualify as a public authority. The essential is that of “substantial funding”.

[¶43] The court has said that “If NGOs or other bodies get substantial finance from the
Government, we find no reason why any citizen cannot ask for information to find out

58
Center for Public Interest Litigation v. Union of India MANU/SC/0595/2020
59
Adv. Arvind K. Waghmare v. PM CARES Fund PUBLIC INTEREST LITIGATION : LD-VC-PIL
NO.54/2020
60
D.A.V. College Trust and Management Society and Ors, v. Director of Public Instructions and Ors, AIR 2019
SC 4411

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whether his/her money which has been given to an NGO or any other body is being used for
the requisite purpose or not.” Another important condition which the court has highlighted is
that “…whether the body, authority or NGO can carry on its activities effectively without
getting finance from the Government. If its functioning is dependent on the finances of the
Government then there can be no manner of doubt that it has to be termed as substantially
financed.”

[¶44]In the instant case, it has been duly proven beyond all reasonable doubt that the PM
SEVA fund does not gets any financial backing from the government. Even the court itself in
the case of Center for Public Interest Litigation v. Union of India61 has taken judicial notice
of the fact that the PM SEVA doesn’t have any budgetary support and it only accepts
voluntary contributions from various individuals and organizations. On the second point as to
whether the fund can run without getting financed from the government, the answer is in the
affirmative. The PM SEVA fund can easily and smoothly function and is completely
independent of government financing.

Hence, it is humbly submitted that the actions of the government in managing the PM
SEVA Fund not violating the principles of accountability and transparency.

3. WHETHER A ‘FUND,’ CONSOLIDATED OR OTHERWISE, FORMULATED

BY THE GOVERNMENT FALLS WITHIN THE PURVIEW OF
TRANSPARENCY NORMS?

[¶45] It is humbly contended before this Hon’ble Supreme Court that the a ‘Fund,’
consolidated or otherwise, formulated by the government not falls within the purview of
transparency norms on the following grounds; firstly, the PM SEVA Fund doesn’t fall within
the definition of public authority [3.1]. Secondly, the PM SEVA Fund constituted as a Public
Charitable trust [3.2] and lastly, the PM SEVA Fund falls within the sec.8(I)(e) of the Right
to information (RTI) Act, 2005 [3.3].

[3.1] The PM SEVA Fund doesn’t fall within the definition of public authority

[¶46] The PMNRF is not a public authority on grounds that the fund is deemed as a trust and
is not financed, owned or controlled by the Government of India. He further drew a

61
Center for Public Interest Litigation v. Union of India MANU/SC/0595/2020

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connection to a 2012 case, in Secretariat v. Nitish Kumar Tripathi,62 public funds were
explicated as funds that are a result of state imposed and collected taxes, cuss, service
charges, duties etc. from its citizens. Therefore, the existence of government control in the
management of the PMNRF is clearly lacking and could not be considered as a public
authority.

[¶47] The PM SEVA Fund is a charitable trust registered under the Registration Act, 1908.63
PM Cares Fund is a voluntary fund registered as a public charitable trust necessitated due to
the emergent situation borne out of Covid-19 pandemic, any individual or institution can
contribute to PM SEVA. It does not get any budgetary support and no government money is
credited in the PM SEVA Fund.64 Term 'public authority' Under Section 2(h) of the RTI Act
includes any authority or body or an institution of self-government established by the
Constitution or under the Constitution. 65 The nature of NDRF and PM SEVA Fund are
entirely different. The NDRF is a statutory fund created under the Disaster Management Act
(DM Act).66 Since it is a public charitable trust with voluntary donations and does not receive
any government support, no CAG audit is required. In case of NDRF, the guidelines issued
by the central government as per DM Act specifically provide for audit of the NDRF by
CAG.

[¶48] The existence of National Disaster Response Fund, which is a statutory fund, neither
prevents creation of any public charitable trust receiving voluntary donation nor can remotely
mean that the amount received in all such voluntary funds should go in the statutory fund
created Under Section 46.67 National Disaster Response Fund and PM SEVA Fund being
distinct and separate.68

[¶49] Section 11 of the DM Act 2005 mandates that there shall be a National Disaster
Management Plan (NDMP) for the whole of India and the NDMP complies with the National
Policy on Disaster Management (NPDM) of 2009 and conforms to the provisions of the DM

62
Secretariat v. Nitish Kumar Tripathi,LQ 2012 HC 11008
63
PM Care Fund, available at https://www.pmcares.gov.in/en/web/page/faq
64
Does the PM Cares Fund require an audit by the CAG? What the Supreme Court said, Murali Krishnan
Hindustan Times, New Delhi, see at https://www.hindustantimes.com/india-news/does-the-pm-caresfund-
require-an-audit-by-the-cag-what-the-supreme-court-said/story-Dz3gs18ALS9uXMGk6Kuq0N.html
65
Interpreting the expression 'public authority' in Thalappalam Service Cooperative Bank Limited and Ors v.
State of Kerala and Ors MANU/SC/1020/2013: (2013) 16 SCC 82,(India)
66
PM CARE FUND- contribution needed to be credited to NDRF, The Hindu available at
https://www.thehindu.com/news/national/pm-cares-contribution-need-not-be-credited-to-ndrf-supreme-
court/article32381595.ece
67
Disaster Management Act, 2005 Sec. 46
68
Centre for Public Interest Litigation vs. Union of India (UOI) (18.08.2020 - SC)

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Act making it mandatory for the various central ministries and departments to have adequate
DM plans. While the NDMP will pertain to the disaster management for the whole of the
country, the hazard-specific nodal ministries and departments notified by the Government of
India will prepare detailed DM plans specific to the disaster assigned. As per Section 37 of
the DM Act, every ministry and department of the Government of India, be it hazard-specific
nodal ministries or not, shall prepare comprehensive DM plans detailing how each of them
will contribute to the national efforts in the domains of disaster prevention, preparedness,
response, and recovery.

[¶50] We may also notice that this Court in Gaurav Kumar Bansal v. Union of India and
Ors,69 has noticed that National Plan under Section 11 has already been approved by National
Disaster Management Authority. The mere fact that administration of the Trust is vested in
trustees, i.e., a group of people, will not itself take away the public character of the Trust as
has been laid down in Mulla Gulam Ali & Safiabai D. Trust v. Deelip Kumar & Co.70

[¶51] If we see the Constitution of the Trust, The Chairperson of the Board of Trustees
(Prime Minister) shall have the power to nominate three trustees to the Board of Trustees
who shall be eminent persons in the field of research, health, science, social work, law, public
administration and philanthropy or Any person appointed a Trustee shall act in a pro bono
capacity. 71

[3.1.1] Fund is not audited and checked by the CAG

[¶52] Also the most of the government authorities are audited and managed by Comptroller
and Auditor General (CAG) as the CAG has the powers to conduct the revenue audit of all
accounts drawn by the licensees and expressed the view that the accounts of the licensee, in
relation to the revenue receipts can be said to be the accounts of the Central Government 72
but in the present case the PM SEVA Fund is not audited by CAG rather it was audited by
private investors as it not a public authority.

[3.2] The PM CARES Fund constituted as a Public Charitable trust

[¶53] It is humbly submitted before this court that PM SEVA fund is a public charitable trust.
It was established with the objective of helping the affected persons during any emergency or

69
Gaurav Kumar Bansal v. Union of India and Ors, (2017) 6 SCC 730
70
Mulla Gulam Ali & Safiabai D. Trust v. Deelip Kumar & Co, (2003) 11 SCC 772, In paragraph 4
71
About PM care Fund, PMINDIA available at https://www.pmindia.gov.in/en/about-pm-cares-fund
72
Association of Unified Tele Services Providers and Ors, v. UOI, M.A.N.U. 328 (S.C. 2014)

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distress situation such as the situation posed by COVID-19. The charitable trusts are public
trusts. Black’s Law Dictionary, Tenth Edition defines charitable trust in following words: “A
trust created to benefit a specific charity, specific charities, or the general public rather than a
private individual or entity. Charitable trusts are often eligible for favorable tax treatment.”
The PM CARES is also of similar nature and provides aid to the needy and the helpless.

[¶54] Moreover, it is submitted that the trust deed of PM SEVA Fund has been registered
under the Registration Act, 1908.73 The courts have also taken judicial notice of the fact that
PM SEVA is a public charitable trust. In casu, Center for Public Interest Litigation v. Union
of India,74 the Hon'ble court itself has held that “PM SEVA Fund has been constituted as a
public charitable trust. After outbreak of pandemic COVID-19, need of having a dedicated
national fund with objective of dealing with any kind of emergency or distress situation, like
posed by the COVID-19 pandemic, and to provide relief to the affected, a fund was created
by constituting a trust with Prime Minister as an ex-officio Chairman of PM SEVA Fund,
with other ex-officio and nominated Trustees of the Fund.” Similarly in the case of Adv.
Arvind K. Waghmare v. PM CARES Fund75 the High Court of Maharashtra also held that PM
SEVA fund is public charitable trust.

[3.3] The PM SEVA Fund falls within the Sec.8 (I) (e) of the Right to information (RTI)
Act, 2005

[¶55] It is most humbly submitted before this Hon'ble court that there exists a “fiduciary
relationship” between the trust and its beneficiaries. It is a relationship based on trust and
confidence. In casu, Rajendra Vasantlal Shah v. Central Information Commissioner and
Ors,76 the court held that “A very broad term embracing both fiduciary relations and those
informal relations which exist wherever one person trusts in or relies upon another. One
founded on trust or confidence reposed by one person in the integrity and fidelity of another.”

[¶56] Examples of fiduciary relations are those existing between attorney and client, guardian
and ward, principal and agent, executor and heir, trustee and cestui que trust, landlord and
tenant, etc.” The court has emphatically laid down that the relationship between the trustee
and its beneficiaries is a fiduciary relationship.

73
About PM CARES Fund, GOVERNMENT OF INDIA available at https://www.pmindia.gov.in/en/about-pm-
cares-fund/
74
Center for Public Interest Litigation v. Union of India MANU/SC/0595/2020
75
Adv. Arvind K. Waghmare v. PM CARES Fund PUBLIC INTEREST LITIGATION : LD-VC-PIL
NO.54/2020
76
Rajendra Vasantlal Shah v. Central Information Commissioner and Ors. AIR 2011 Guj 70

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[¶57] It is further submitted that in the case of Rakesh Kumar Singh and others v. Harish
Chander, Assistant Director and others, 77 Central Information Commission held that- “The
word fiduciary is derived from the Latin fiducia meaning “trust, a person (including a juristic
person such as Government, University or bank) who has the power and obligation to act for
another under circumstances which require total trust, good faith and honesty. The most
common example of such a relationship is the trustee of a trust”. In the case of CBSE v.
Aditya Bandopadhyay, 78 the court held that in a fiduciary relationship a person reposes
complete trust and confidence in another person.

[¶58] In the instant case, the PM SEVA fund is a public charitable trust. Meaning thereby
that there exists a fiduciary relationship between the fund and its beneficiaries and therefore
the information sought by the petitioners would amount to violation of this relationship. The
exception mentioned under section 8(I) (e)79 of the RTI Act, 2005 which says that in cases
where there is an existence of fiduciary relationship, disclosure of information shall not take
place. Also, the public interest in the present case is to promote the healthcare services and
provide relief to the affected which the trust has always kept doing.

[¶59] It is submitted that the trust has been constantly working in public interest and is
working in pursuance of its objectives. Till now, an amount of Rs. 3100 Crore has been
allocated from PM SEVA Fund for the following activities: - Rs. 2000 Crore: For supply of
50,000 ‘Made-in India’ ventilators to Government Hospitals run by Centre/States/UTs, Rs.
1000 Crore: For care of migrant laborers (funds allotted to State/UT Govts.), Rs. 100 Crore:
For vaccine development.80 It clearly lays down the fact that the trust has been working
constantly for the benefit of the people and is also giving information about the decisions it
has taken in public welfare. Needless, to say, that the work of the trusts and all its decisions
are benefitting large masses and the trust is working in adherence to its aims and objectives.

Hence, it is humbly submitted that the ‘Fund,’ consolidated or otherwise, formulated by the
government not falls within the purview of transparency norms.

77
Rakesh Kumar Singh and others v. Harish Chander, Assistant Director and others MANU/CI/246/2007
78
CBSE v. Aditya Bandopadhyay (2011) 8 SCC 497
79
Right To Information Act, 2005 S. 8
80
About PM CARES Fund, GOVERNMENT OF INDIA available at
https://www.pmcares.gov.in/en/web/page/faq

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4. WHETHER THE GOVERNMENT HAS ANY AUTHORITY TO RECEIVE

OFFSHORE DONATIONS?

[¶60] It is humbly Submitted before the Hon’ble Court that the government has authority to
receive the offshore donation on the following grounds: firstly, PM SEVA fund within the
ambit of FCRA [4.1]. Secondly, PM SEVA fund in the ambit of CSR expenditure [4.2].
Thirdly, There was no violation of Article 14 [4.3] and lastly, there was no violation of
natural justice [4.4].

[4.1] PM SEVA fund within the ambit of FCRA

[¶61] It is humbly submitted before the Hon’ble Court that PM SEVA fund is exempted from
all the provision of Foreign Contribution Regulation Act (FCRA) meant to regulate foreign
donations, although it does not seem to meet the pre-condition of being a body established.

[¶62] The FCRA is meant to regulate the acceptance and use of foreign contributions and to
prevent their use for activities detrimental to national interest. This includes gifts and
monetary contributions from foreign sources, whether in Indian or foreign currency81.

[¶63] Section 50 of the Act allows the Central government to issue orders exempting any
organisation from the provisions of FCRA if it feels it necessary or expedient in public
interest, subject to conditions specified in the order82.

[¶64] The PM SEVA Fund is a public charitable trust registered under the Registration Act,
1908. It was not set up through a Central or State Act. All bodies established by the
government are public authorities under that Act. The Fund is audited by an independent
auditor, not by the CAG 83. Hence, it is humbly submitted before the Hon’ble Court that PM
SEVA fund has received the offshore donation under the ambit of FCRA. The intension of
the govt. to exempt the PM SEVA fund from FCRA is in the national interest with the
primary objective of deal with any kind of emergency or distress situation, like Covid-19
pandemic.

[4.2] PM SEVA fund in the ambit of CSR expenditure

81
Priscilla Jebaraj, PMCARES Fund gets FCRA exemption without meeting pre-condition of CA Gaudit,
available at https://www.thehindu.com/news/national/pm-cares-fund-gets-fcra-exemption-without-meeting-pre-
condition-of-cag-audit/article32584371.ece (last visited April 23, 2021)
82
Section 50 of FCRA
83
Supra 1

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[¶65] It is humbly submitted before Hon’ble S.C that the government of Shire amended the
provision of Corporate social responsibility (CSR) and made PM SEVA fund and State
Disaster Management Authorities to combat Covid-19 will qualify as CSR expenditure.

[¶66] Govt. has amended the Act to regulate the acceptance and utilization of foreign
contribution by individuals, association and companies, which now allows the PM CARES
fund and State Disaster Management Authorities to receive contributions in the form of
Corporate Social Responsibility (CSR) activity84. As Covid-19 pandemic requires more and
more resources, the Government set up PM SEVA Fund as a public charitable trust. It intends
to fulfil need for having a dedicated national fund with the primary objective of dealing with
any kind of emergency or distress situation, like Covid-19 pandemic and to provide relief to
the affected.

[¶67] PM SEVA fund was set up to provide relief and assistance to any kind of public health
emergency such as COVID-19 pandemic, calamity or distress and other necessary expenses
to fund relevant research and other types of support 85. The PM SEVA fund can get voluntary
donations from individuals, organizations and corporates from the home country as well as
from individuals/organizations based in foreign countries 86.

[¶68] At the time of setting of PM Cares Fund, the Government did mention that will also
qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the
Companies Act, 2013. Many of the companies, especially Public Sector Enterprises, made
contributions, but in the absence of legal sanctions, questions were raised on such
contributions87.

[¶69] Finally, it is humbly submitted before the Hon’ble Court that people through-out the
world suffering from Covid-19 and the aim of the govt to provide the best facility to the
people of Shire in the health sector and the aim of the PM SEVA fund to deal with any kind
of emergency or distress situation. Also, four Companies contributed 1500 88 Crore to the PM

84
Lex-Start, Donations made to PM CARES fund to be included in CSR available at
https://medium.com/@Lexstart_India/donations-made-to-pm-cares-fund-to-be-included-in-csr-6e8b2dbcb157
(last visited 22 April, 2021)
85
Ibid
86
Shishir Sinha, Contributions to PM CARES Fund will be considered as CSR: Centre, available at
https://www.thehindubusinessline.com/economy/policy/contributions-to-pm-cares-fund-will-be-considered-as-
csr-centre/article31684769.ece (last visited 24 April, 2021)
87
Ibid
88
Moot proposition, Para 7 and 9

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SEVA fund after amendment in the provision of CSR that contribution supports the nation to
tackle with the Covid-19 Pandemic.

[4.3] There was no violation of Article 14

[¶70] It is most humbly submitted before Hon’ble court that the fundamental rights are
qualified not absolute except the right against untouchability. The fundamental rights are
qualified with limitation and reasonable restriction in collective interest of the society89. The
Constitution of Shire also describing its limitations. These are situations including non-
applicability to members of security and law and order related to forces during marital law
and for certain laws necessary for socio-economic reforms90.

[¶71] Therefore, no any person’s right to equality is violated. The exemption has given to PM
SEVA under the necessity of time or situation of COVID-19 to meet the voluntary
contribution of foreign contributions or donation.

[¶72] With such argumentum, the counsel hereby submits that the exemption in FCRA to PM
SEVA is totally legal and valid as per the law. Parliament has power to amend and repeal any
law. Govt. has amended the Act to regulate the acceptance and utilization of foreign
contribution by individuals, association and companies.

[¶73] Foreign contribution here means is the donation or transfer of any currency, security or
article by a foreign source91. But not from all person or association can accept foreign
contribution because under the act certain persons or association are prohibited to accept any
foreign contribution. These include election candidates, editor or publisher of a newspaper,
judge, govt. servant 92. Member of legislature and political parties etc. under this Act, foreign
contribution cannot be transferred to any other person unless such person is also registered to
accept foreign contribution.

[¶74] Therefore, with such provision of laws PM SEVA is not accepting any fund which are
coming from illegal foreign individuals or associations, this act totally prohibits such
activities. This act is an attempt to bring transparency 93 and govt. has come up with certain
laws because it demands of time. And this Act cannot violate any right to equality of people.

89
Jayender Vishnu Thakur v. State of Maharashtra, (CRL.) no. 6374 of 2007.
90
Acharya Maharajshri v. The State of Gujrat, (1974) 2098.
91
https://www.prsindia.org/billtrack/foreign-contribution-regulation-amendment-bill-2020.
92
Ibid.
93
https://www.timesnownews.com/india/article/parliament-passes-fcra-amendment-bill-why-the-
governmentand-ngos-are-not-on-the-same-page-over-legislation/658447 .

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[¶75] Lastly, the counsels submit that COVID-19 phase is a world disaster not Shire but also
for world. The world economy has gone in recession. So, in this critical situation there is
certain requirement make a reform in economy to overcome from disaster and provide certain
basic necessity to al needy people who have affected from this disaster. The fund is
requirement of situation so, there is nothing means to violate any fundamental rights or right
to equality of people. Hence, the right to equality is not violated of the people.

[4.4] There is no violation of natural justice

[¶76] It is humbly contended before this Hon’ble Supreme court that the exemption of PM
SEVA fund has not violated the principle of natural justice. In the case of Maneka Gandhi
v.Union of India94,Karnataka Public Service Commission v. B.M. Vijay Shankar95 and Ram
Krishna Vermav. Province of U.P96, Supreme court held that a rule could be bar natural
justice either explicitly or by necessary implication. However, such a rule might be tested
under Article 14 so it ought to be legitimate.

[¶77] Application of the principles of natural justice can be excluded either expressly or by
necessary implication, subject to the provisions of Article 14 and 21 of the constitution.
However, along with constitutional limitations in Shire Common Law exception are also
preferred.The requirement of the principle of “Nemo Judex Causa Sua” is that the decision-
maker should be opened to persuasion but don’t require that he/she must be with a bank
mind97. In case of R v Sussex Justices ex parte McCarthy 98the court held that “justice should
not only be done, but should manifestly and undoubtedly be seen to be done”.

[¶78] In the instant case, the exemption of PM SEVA fund from FCRA is in the public
interest as through this fund govt. helps to the people of shire to fight with the novel corona
virus (Covid-19). Also, the central government certainly has the power to exempt any entity
from the provisions of the FCRA if it is of the “opinion that it is necessary or expedient in the
interests of the general public so to do”99.

Hence, it is humbly submitted that the government has the authority to receive the offshore
donation on the basis of above arguments.

94
Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621
95
Karnataka Public Service Commission v. B.M. Vijay Shankar 1992 AIR 952, 1992 SCR (1) 668
96
Ram Krishna Verma v. Province of U.P, 1992 AIR 1888, 1992 SCR (2) 378
97
Australian administrative law by Matthew Groves Pp. 317, 326 (2007)
98
R v Sussex Justices ex parte McCarthy [1924] 1 KB 256
99
DIVYAM NANDRAJOG, The PM CARES Fund: Excused from India’s Laws, available at
https://www.article-14.com/post/the-pm-cares-fund-excused-from-india-s-laws(visited on 22 April, 2021)

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare that:

1. The petition is not maintainable and the Petitioner has no any locus standi in the case.
2. Actions of the government in managing the PM SEVA Fund not violating the principles
of accountability and transparency
3. A ‘Fund,’ consolidated or otherwise, formulated by the government not falls within the
purview of transparency norms
4. The government has authority to receive offshore donations

AND PASS ANY OTHER ORDER OR DIRECTION THAT THIS

HON’BLE COURT MAY DEEM FIT IN THE INTERESTS OF JUSTICE,
EQUITY AND GOOD CONSCIENCE.

ALL OF WHICH IS HUMBLY PRAYED,

TC-05 (R)
COUNSELS FOR THE RESPONDENT

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