The Delhi High Court on Monday reserved its verdict on a public interest litigation seeking creation of a body which is independent of political executive to implement the law to regulate foreign contributions.

The order was reserved by a bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad after hearing the lawyers for the petitioner, NGO Association for Democratic Reforms (ADR), and the Centre.

The petitioner argued that the administration of Foreign Contribution (Regulation) Act [FCRA], which was enacted to prevent political parties from taking foreign contributions, cannot be done by a government which is headed by a political party as it results in a conflict of interest.

The central government counsel opposed the petition and said the case of the petitioner was only based on an apprehension of abuse of power.

“The act was brought to primarily prevent political parties and their candidates from taking foreign contribution…. What we are saying is in the administration of such an act, obviously there is bound to be conflict of interest if the administration is completely in the hands of the government because government is run by a political party,” said Prashant Bhushan, lawyer for the petitioner.

“We filed one case in this court which ended with a detailed judgement of this court, which said that both the Congress party and the BJP have taken foreign donations and therefore take action against them under the act. They have to be prosecuted etc. that resulted in the government amending the FCRA with retrospective effect etc,” he submitted.

The lawyer contended that while no action has been taken against legislators who are in violation, the government has taken action “only against their political opponents” as well as other organisations.

“FCRA registration of not just Greenpeace but CHRI, which is headed by some very respectable people, Amnesty — an international human rights organisation…all their FCRA registrations have been suspended because they were questioning some of the things that the government was doing. There is all kinds of conflict of interest involved in the administration of this act being exclusively in the hands of the government,” Bhushan said.

The Centre’s counsel argued that bringing any amendment to the existing law is a “legislative function” and action is being taken under the FCRA against those in violation.

“Just because there is an apprehension of abuse of power, apprehension of overuse or underuse, it will not make a provision unconstitutional,” the government counsel said.

She argued that the cases under the Act are “too minuscule a number to make another body” and judicial review is not precluded and a relief cannot be sought on a “possibility of an abuse”.

The Centre has earlier told the court that the government has a “robust and efficient” system to implement the foreign contribution regulations law as it has already imposed penalties, frozen accounts and referred to the CBI and state police several NGOs for violations.

Bhushan said that when the power to investigate offences under the act is with a government formed by a political party, there will be serious conflict of interest. He also flagged a “systemic problem”.

“There may be occasions where government administering FCRA acts perfectly fine, rationally and fairly. But there are judgements of this court where they have found that the government is not doing its job,” he said.

In an affidavit filed earlier, the Centre has said that there was no need for any tribunal or body for enforcement of FCRA as doing so would be a “wastage of precious resources in terms of money and manpower, both of judiciary as of executive”.

It has said several instances of NGOs violating provisions of the FCRA 2010 and the Foreign Contribution (Regulation) Rules 2011 have come to the government’s notice.

“Since implementation of FCRA and FCRR, notices were issued to around 21,000 associations in 2011 and to 10,343 associations in 2014 for not filing annual returns continuously for three years.

“Consequently, registration of 4,138 associations was cancelled in July 2012 and of 10,117 in March 2015 after issue of show cause notices to such associations and giving them adequate opportunity to reply to the same. After inspections and scrutiny of accounts, 24 cases were referred to CBI and 10 to state police for further investigation and prosecution,” the affidavit has said.

It has also said, “The accounts of 34 associations have been frozen and that 66 associations have been prohibited from receiving foreign contribution. That in 2014 penalty amounting to over Rs 5.20 crore had been imposed on 341 associations for late or non-submission of mandatory annual returns and of Rs 51.99 lakh on 24 associations for receipt and utilisation of foreign contribution without obtaining registration or prior permission under FCRA.”