The Hindu
New Delhi

To set up a committee or tribunal is purely a policy decision: court

The mere possibility of a law being administered in a manner which may conflict with constitutional requirements does not render it invalid, the Delhi High Court remarked on Tuesday while rejecting a petition seeking formation of a committee to oversee the enforcement of the Foreign Contribution (Regulation) Act.

The FCRA was enacted to regulate the acceptance and utilisation of foreign contribution or hospitality by individuals, associations, and companies. It prohibits the acceptance of foreign contribution or hospitality for activities detrimental to national interest.

‘Nothing on record’

“Nothing has been placed on record to show that the FCRA is being used selectively against NGOs and other independent organisations as well,” a Bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said while dismissing the petition by NGO, Association for Democratic Reforms (ADR).

“The entire case of the petitioner (ADR) is premised on the possibility of a political party, who is also at the helm of affairs at the Centre, abusing the provisions of the FCRA to suppress dissent and receive foreign contributions in its own favour. The instant writ petition is entirely built on surmises and conjectures,” the Bench said.

As per FCRA, the Central government has wide ranging powers to oversee the enforcement of the Act. Not only does the Central government have the authority to bestow upon an organisation certification to get foreign contributions, it also has the power to specify an authority to investigate offences under the FCRA.

ADR, in its plea, had stated that the political party at the helm of affairs could have differing perspectives on development, public policy and national interest. “Such political ideology and leaning of differing political parties also has a bearing on how they may use the FCRA i.e., some political parties, at the helm of affairs, may use the FCRA to suppress dissent from independent organisations and NGOs alike,” it said.

The NGO also apprehend that as the bureaucracy works in close connection with the political executive, there is possibly a conflict of interest which could possibly mean that certain political parties are not penalised for transgressions under the FCRA.

The High Court, however, rejected the NGO’s argument saying, “This court cannot presume that just because there is a possibility of the Act being misused or in some stray cases it has been found to be misused, a body must be created to oversee the functioning of FCRA”.

“It is trite law that when a body or person, as prescribed by the Central government, passes an order under the FCRA, the law presumes that such order is bona fide. This court cannot assume mala fides and misuse of power in such a situation unless material to the contrary is placed on record,” the High Court reminded.

“It is well settled that there is a presumption of constitutionality in favour of a statute and mere apprehension that an Act is capable of being misused is no ground for replacing the wisdom of the legislature with that of the judiciary,” the court added.

On the question of setting up of a committee to oversee the enforcement of FCRA, the High Court said, “A direction for setting up a committee or tribunal would effectively be an amendment of the FCRA, which is beyond the scope of judicial review by this court. Hence, an attempt by a judicial body to set up a tribunal is directly in the teeth of the doctrine of separation of powers”.

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