Modi should be tried for misuse of national emblem, cheating, fraud and corruption
By abhay mokashi
Prime Minister Narendra Modi and his three cabinet colleagues should be charged for cheating, fraud, breach of trust and corruption for his association with the PM CARES Fund (Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund).
The Union Government filed an affidavit in the Delhi High Court last week, declaring that the PM CARES is a public charitable trust, in the sense that it is not under the Central or State government nor has it been created under the Constitution or any other statute. Moreover, the funds collected by this organisation does not go to the Consolidated Fund of India.
All along the Union Government has made people believe that the trust is a body of the Union Government. There have been demands from various quarters, including the opposition political parties for a clarification of the PM CARES fund, but the government did not come clean, until the matter came up in the Delhi High Court.
On the contrary, an impression was created time and again that it is a government fund. Also, the timing of the setting up PM CARES was such that the public at large believed it to be a fund set up to raise funds to take care of COVID 19 patients in the country. Modi, had announced a nationwide lockdown on March 24, 2020 in the wake of the COVID 19 pandemic and the PM CARES fund was registered as a public trust on March 27, 2020.
This is not all, the next day Modi tweeted, “People from all walks of life expressed their desire to donate to India’s war against COVID-19. Respecting that spirit, the Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund has been constituted. This will go a long way in creating a healthier India.”
There was reason for the people to believe that it was a fund setup and belonging to the Prime Minister’s Office (PMO) because of another tweet by the Prime Minister, the message being, “Let us leave no stone unturned to make India healthier and more prosperous for our future generations.”
The official website of the Prime Minister speaks about PM CARES Fund. The Uniform Resource Locator (URL) of PM CARES Fund has the extension .gov.in, giving the visitors to the website and impression that the fund is set up by the Government of India.
Now that it has been officially clarified that it is a private trust, several legal issues come to the fore. The Trust Deed registered with the Sub Registrar VII of New Delhi, starts with, “This DEED OF TRUST is executed at New Delhi on this 27 day of March, 2020 (the “Deed”) by the Prime Minister of India (hereinafter referred to as the “Settlor”, which expression shall, unless repugnant to the context of meaning thereof, be deemed to include his successor-in-office).”
If the PM CARES Fund is not a government trust, how come the Trust Deed is executed by the Prime Minister of India and what right does he have to set up a private body in his capacity as the Prime Minister? Also, how can it be binding on his ‘successor-in-office’ to head the fund? Modi, should have stated in the application for registration that he is the Prime Minister of India, but he cannot say that he is starting the Trust as the Prime Minister of India, when it is a Trust owned and run by private individuals, who happen to be Ministers in the Union Council of Ministers.
How can a Trust, not owned by Prime Minister of India, have the term Prime Minister of India in its nomenclature? Does this not amount to deceit and cheating? It is fraudulent use of the term Prime Minister and if any other citizen had done this, the person would be in the lockup by now. There is no equality before the law in this case.
When the general public registers a trust, they have to give the exact address of the office of the trust, in this case the Trust Deed mentions, “The head office of the Trust shall be situated at New Delhi and the Board of Trustees may decide on the location of the head office at New Delhi, and change the same, from time to time, at their discretion.”
On its website, the address has been mentioned as Prime Minister’s Office, South Block, New Delhi 110011. Procedure requires that the trustees of a trust have to either show the ownership of the premises that is shown as office address or have to get a copy of an agreement to show that the premises is being let out for use as office of the said trust. This was overlooked by the sub-registrar, who registered the trust. In this case, the Prime Minister is not the owner of the office, so he needs to get the requisite permission from the Estate Manager, Public Works Department. There again, it cannot be given to a trust not run by the government.
The trustees mentioned in the registration application are: Prime Minister of India (ex-officio); Minister of Defence, Government of India (ex-officio); Minister of Home Affairs, Government of India (ex-officio); and Minister of Finance, Government of India (ex-officio).
Another question that arises is how can a private trust mention that some members of the Union Council of Ministers be ex-officio its trustees. Moreover, the Trust Deed is signed only by Narendra Modi; whereas all the trustees need to sign the Trust Deed.
Article 6.8 of the Trust Deed states that the Prime Minister’s Office (PMO) shall provide such administrative and secretarial support to the Trustees for the management and administration of the Trust, as may be required by the Trustees including coordinating with the Advisory Board.
The Prime Minister’s Office is not the personal office of Narendra Modi and he does not pay the salaries of the staff of the PMO, so he cannot delegate the work of his private trust to those who are paid salaries from the public exchequer.
The website and all publicity material of PM CARES Fund uses the national emblem of India, this is in violation of Section 3 of The State Emblem of India (Prohibition and Improper Use) Act, 2005, which states, “Prohibition of improper use of emblem.—Notwithstanding anything contained in any other law for the time being in force, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government, or as the case may be, the State Government, without the previous permission of the Central Government or of such officer of that Government as may be authorised by it in this behalf.”
The government needs to clarify if such permission was granted to the trust, if so when and under what circumstances.
The registration of the trust was at jet speed. The application was made at 19:11:12 HRS on March 27, 2020 and it was registered at 19:12:15 HRS. Most important is that Modi has signed the document as Prime Minister.
The formation and registration of PM CARES Fund has to be compared to the formation of Indira Gandhi Pratibha Pratishthan by the then Chief Minister of Maharashtra A R Antulay and which was challenged by Ramdas Nayak in the Bombay High Court and the Supreme Court of India. In the Supreme Court, the petition was heard by Chief Justice P N Bhagwati and Justice Ranganath Misra.
The setting up of the PM CARES Fund should be seen in the light of Section 161 and Section 165 of Indian Penal Code (IPC).
The judgement in what is popularly known as Antulay case, notes, “Section 165 is so worded as to cover cases of corruption which do not come within ss. 161, 162 or 163. Indisputably the field under s. 165 is wider. If public servants are allowed to accept presents when they are prohibited under a penalty from accepting bribes, they would easily circumvent the prohibition by accepting the bribe in the shape of a present. The difference between the acceptance of a bribe made punishable under Sections 161 and 165, IPC is that under the former section the present is taken as a motive or reward for abuse of office; under the latter section the question of motive or reward is wholly immaterial and the acceptance of a valuable thing without consideration or with inadequate consideration from a person who has or is likely to have any business to be transacted, is forbidden because though not taken as a motive or reward for showing any official favour, it is likely to influence the public servant to show official favour to the person giving such valuable thing.….The provisions of Sections 161 and 165 IPC as also Section 5 of the Act are intended to keep the public servant free from corruption and thus ultimately ensure purity in public life.”
The judgment also observes, “Section 165 does not require taking of gratification as a motive or reward for any specific official action, favour or service but strikes at obtaining by a public servant of any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been or to be or likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant or having any connection with the official functions of himself or of any public servant to whom he is subordinate or from whom any person whom he knows to be interested in or related to the person so concerned.”
The website of the PM CARES Fund does not give details of the donors to the fund, but names mentioned in the media include those who are involved in activities which require the sanction of the government.
Legal experts will have to see if sections 415 (Cheating) and 420 (Fraud) of IPC can apply to the acts of Modi and his cabinet colleagues, who are trustees of PM CARES Fund.
A separate note by Chief Justice Bhagwati in the said case says, “There must be an assumption that whatever is published in the Government owned paper correctly represents the actual state of affairs relating to Governmental business until the same is successfully challenged and the real state of affairs is shown to be different from what is stated in the Government publication.” In this case a website owned and run by the Government of India should be construed to be a government owned paper, as mention by Justice Bhagwati.
The matter may or may not go to the courts, but it is clear that the people have been cheated by Modi and his team.