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Responding to 8.2 PM CARES Fund:

> The total amount of funds donated and the names of donors have not been publicly disclosed, and the fund is privately audited

False. It has been disclosed. For both years (2019-20 and 2020-21).

1. 2019-20: https://www.pmcares.gov.in/assets/donation/pdf/Audited%20Sta...

2. 2020-21: https://www.pmcares.gov.in/assets/donation/pdf/Audited_State...

> names of donors have not been publicly disclosed

Why should names of donors be disclosed? It is a donation for a charitable cause. Charity is typically done anonymously unless the donor explicitly requests to be named.

> fund is privately audited

I don't see anything wrong with that. It is the same as the erstwhile Prime Minister's National Relief Fund which ran for 70 years and introduced by the Congress Party.

> The Government of India had initially claimed that the fund is a private fund, and denied that the PM CARES Fund is a public fund for the purposes of transparency laws such as the Right to Information Act 2005, even though the Fund uses government infrastructure and the national emblem of the Government of India

This is fake news spread by NDTV. The Government did not say anywhere that it was a private fund. This was deliberate misinterpretation of Clause 5.3 of the Trust Deed [1] by NDTV. It was registered as a "Public Charitable Trust" [2]

Yes it does not come under RTI just like the Prime Minister's National Relief Fund which was setup by the Congress Party but was not even registered.

The Fund using Government infrastructure or National Emblem of GoI has no bearing on it to being included under RTI. Even the earlier Prime Minister's National Relief Fund, which was unregistered entity, carried the National Emblem and used Government infrastructure and was not under RTI. So why was no issue raised on that? The PM CARES Fund is not an institution that is established or constituted by an act of Parliament or a state legislature. And the funds are not used for day-to-day functioning of the Government of India. Hence, it cannot come under RTI. Now would it be good if the Government brought it under RTI? Yes, it would be good as it would quell all doubts regarding the fund. Can it be forced to bring it under RTI? No it cannot be. There is already precedent set by Prime Minister's National Relief Fund which functioned for 70 years as an unregistered entity with no audits being carried out by the CAG. At least the PM CARES fund is registered and goes through scrutiny by independent auditors from a panel suggested by the CAG. I would definitely vote for more transparency in the fund, but I wouldn't be shocked/surprised if this petition was struck down by the Courts.

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> 8.1 Rafale Scam: The supreme court of India headed by Chief Justice of India Ranjan Gogoi gave clean chit to government without requiring any investigation. Government recommended the same judge for Rajya Sabha right after his retirement from the court. I cant say how its morally/ethically right for a judge to accept post-retirement benefit from government and how you can guarantee that the decisions from that judge were unbiased. [6] [7]

Yes you can question the ethics/morality of this. But this is not the first time such a thing has been done. CJIs/Judges taking up jobs in the Government (or even joining Political Parties) post-retirement is not new. And in my opinion it should be avoided to safeguard sanctity of institutions s/he was part of. But you cannot restrict a private citizen from exercising his fundamental rights. The Judge, after retirement, is a private citizen who has all the Rights to do as he pleases. Even if that means joining a Political Party.

However, this cannot be the basis for questioning a judgement based on facts. You are not just insinuating that the CJI acted with bias but also the other 2 Justices of the Supreme Court of India to not have exercised their independent judgement but were coerced by the Government of India. Don't forget that it wasn't Ranjan Gogoi alone but 2 other Justices who sat on the bench. It was decided by all 3 of them. It was unanimous verdict. Not a tie breaker where the CJI had to involve.

The Chief Justice of India or any Court of Law is not duty bound to conduct/direct conducting of investigations in an "alleged" scam without prima facie evidence. In fact, it is the duty of the petitioner to produce evidence "after" conducting investigations "prior" to submitting the petition. Is it the job of the Court to order investigative agencies to investigate random petitions, with no prima facie evidence, filed by petitioners? Can I make a wild accusation against the Government of India, move a Public Interest Litigation in the Supreme Court and expect the Court to direct investigative agencies to investigate the Government just to satisfy my wishes? Then I can easily get 1000s of petitions filed with frivolous accusations and turn the Court and the Government into a circus show. You are expecting too much from the Court. The Court only orders investigations if it finds prima-facie evidence that there is some malpractice or illegality. It could not find any in this case.

Splitting into multiple comments as Hacker News is complaining that it is too long. I'll answer in the order of the most contentious issue you raised first. I will tackle the easy ones in the end.

Responding to 8.3:

> In response, the BJP government has amended the FCRA Act itself, and exempted from scrutiny all foreign funding to parties retrospectively from 1976

This is partly true and some of the wording is incorrect (and facts are misinterpreted). Firstly, the article is written by Pavan K Varma who is a Politician from an Opposition Party (and was recently removed from the party). Not saying that it somehow invalidates his points. Just that there can be vested interests in this as it is his opinion.

The fact is that the Congress Government had already implemented this in 2010 (in a previous amendment to the act). The current BJP Government shifted the year from 2010 further back to 1976. Even if the current BJP Government hadn't amended it, it wouldn't have any issues itself as the case concerned those Governments pre-2014 as per the Court order (and would have scrutinized the previous BJP Government of the 90s headed by different individuals, all of whom are not even in power today). The current BJP Government probably did it to not want to waste Government resources and time on checking every single donation received from 1976 onwards for all parties. This is just my guess. An explanation of this in the Supreme Court will definitely be provided by the Government. We can only wait for that explanation. But even then, I'll try to answer with my limited understanding of the matter.

Pavan K Varma seems to have misunderstood the amendment. The amendment declared what is considered a "foreign source". The technicality is that of having received "foreign contributions" and it being violation of FCRA act. That part I agree with. What I disagree with is that it can now no longer be "scrutinized". That is patently false. It can be scrutinized but cannot be called "illegal". Now is this ethical/correct thing to do? Absolutely not. I suspect all the Political parties arrived at an understanding to not allow skeletons of the past to tumble out in public domain and collectively agreed to allow this amendment to pass. It is not mere coincidence that the Government passed this Amendment without discussion amidst din in the Parliament orchestrated by the Opposition benches. It did so fully in collusion with Opposition parties as well (as they knew what was in the amendment and did not want to discuss it in public domain). This should not have been done this way. It would have been better if there was a discussion held, the political parties accepted their faults of the past and declared to the Nation that they'll rectify it going forward. But it wasn't done because the Opposition has its own skeletons to hide and hence is weak. The ruling dispensation has its own skeletons to hide but is not willing to go through them as it has power and can do whatever it likes. Which is why I stressed on having a strong opposition in my final point in my previous reply. This sort of constructive opposition is needed so that the Government is put in the dock and truth comes out. But we have such a weak opposition (primarily cos it has its own horrid past) that it targets the Government only on those points where it knows it is bound to lose.

Anyways, this is where the Supreme Court comes in and now that the matter is before the Court, the Court will definitely take a call.

Now is it possible for Government to retrospectively fix this illegality? Yes it is possible. It has all the legislative powers to do this. Can Court strike down this amendment? Not possible at all as Judiciary cannot overstretch to that extent. It can only interpret the Law not amend it. It can strike down a Law if it has specific proof of the Law being used for malicious intent. I don't see that happening. As the Government can easily explain it away by saying that the Law was enacted without keeping in mind "so and so [insert excuse here]" and hence needed to be Amended. In fact, this sort of stuff happens quite regularly even for regular citizens like you and me, where stringent penalties (both civil and criminal) are sometimes retrospectively amended as the Law was enacted wrongly to begin with (happened in GST amendments so many times I lost count). In my case specifically (since I am an exporter and this applies to all exporters), the Government, through RBI, decided to push the date for regularization of Bank Realization Certificates indefinitely (even though it is against FEMA regulations) to facilitate exports which were badly affected during COVID crisis. This was done through an order by RBI. Another one is forgiving/waiving of farmer loans. It is literally making something illegal legal. Another good example is retrospectively amending the imposition of a minimum alternative tax on foreign companies so that FDI inflows are not affected. Not all retrospective amendments are "bad" per se. Sometimes the Law is just too strict to be able to do anything meaningful with the Law requiring such retrospective amendments as such Laws were enacted at a time where such issues were not envisioned to occur. The only time retrospective amendment was negatively scrutinized was during the Vodafone case where Vodafone dragged Indian Government to the International Court of Arbitration, Hague with the Indian Government losing the case.

> While the common man has to declare every cent of their income, political parties are allowed to take huge sum of money without disclosing any details

This is wrong. Political parties are 100% exempt from paying taxes on donations. However, they are not given relief from disclosing details of the donations. In fact, the Political parties are duty bound to declare every single paisa they get. Any political party as per Section 13A is required to furnish return of income under Section 139(4B) if its income exceeds maximum amount not chargeable to tax (limit is computed before taking into consideration Section 13A exemption). Tax slab applicable for political parties is same as the one applicable to normal resident individual. It is the responsibility of CEO of the political party to file the return of income and also to sign and verify the same.

The bone of contention really is that Electoral Bonds introduces anonymous electronic donations. But that was the case before as well. Except it was in hard cash and not electronic cash. And hard cash = black money. Electoral Bonds on the other hand can only be purchased through check or demand draft with full KYC. So even though the payee is not necessary to be declared (as donors would like to protect their affiliation), the amount itself is not black money at the very least as it has to now only be paid through Cheque/Demand Draft and not Cash. Now the question is, should the payee details be declared? What if I donated to Congress today and some despot/tyrant takes over India tomorrow and gets a list of all donors who donated to Congress so as to kill them? Do I want my political affiliation to be declared publicly? This is a question of privacy of an individual/corporate entity and not of legality. What if me donating to BJP leads to some mob deciding to cancel me for my political affiliation? Isn't that what happened in US where US Companies were forced to shut down their donations to a certain political party by the mob because it did not align with mob interests else be cancelled for supporting such party? This directly affects my Freedom of Expression. If my voting preference must be kept private and anonymous, why should my Electoral donations be forced to be made public? Wouldn't that reveal my voting preference? How ethical is that?