Live Law
Nupur Thapliyal
New Delhi

public interest litigation seeking constitution of an independent and "politically neutral body" for implementation of Foreign Contribution (Regulation) Act to avoid misuse of law by the executive.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad pronounced the decision. The plea was moved by the Association for Democratic Reforms and Dr. E.A.S. Sarma, former Secretary to the Government of India in 2015.

Observing that the power to set up a committee or tribunal is purely a policy decision, the court said the mere possibility that a statute will not be administered adequately is not a ground for the statute to be invalidated or for the court to supplement its wisdom with the legislature’s.

“The legislature alone has the power to set up a tribunal or committee, under the requisite statute, to adjudicate disputes arising from it. If the prayer sought by the Petitioner is allowed, it would essentially be an exercise in judicial legislation, and would be beyond the power of judicial review accorded to this Court. Due to the aforementioned reasons, this Court is not inclined to allow the present petition,” the court said.

Perusing the scheme of the enactment, the court said that the Central Government plays an important role in enforcing and bringing into action the provisions of the FCRA.

It has the power to delineate what organisations qualify as ‘political’ in nature so as to prohibit them from receiving foreign contribution. It also designates the authority which investigates offences under the FCRA,” the court said.

The court observed that the mere possibility of a law being administered in a manner which may conflict with constitutional requirements does not render it invalid and that the judiciary is always circumspect in substituting its wisdom with that of the legislature.

“In light of this, the prayer made by the Writ Petitioner seeking a direction to constitute an independent Tribunal Committee to oversee the enforcement of FCRA cannot be accepted. 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,” the bench said.

The court also said that the petitioners failed to place on record any data indicating the number of political parties which have availed foreign contribution.

Observing that the petitioners’ apprehension that the enactment may be misused for oblique motives is a bald averment and is entirely unfounded, the court said:

”Courts cannot pass a direction only on hypothesis. Nothing has been placed on record to show that the FCRA is being used selectively against NGOs and other independent organisations as well. The entire case of the Petitioner 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 court also said that an attempt by a judicial body to set up a tribunal would be directly in the teeth of the doctrine of separation of powers.

“Setting up of such Tribunals/Authorities/Committee is purely a policy decision, taken by the Legislature. 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,” the bench observed.

Contending that there is an "inherent conflict of interest" in the administration of the enactment, Advocate Prashant Bhushan appearing for the petitioners had prayed for constitution of an independent committee comprising of retired judges, who are selected by the Chief Justice of India and not the Central Government.

Bhushan said that it is a "straight case" calling for intervention of the High Court for directing the government to constitute an independent body to administer the functioning of the FCRA, claiming that the same is "riddled with conflict of interest."

On the other hand, the counsel appearing for the Centre had opposed the plea on the ground that the prayer was seeking an amendment of the enactment which is a legislative function. The counsel also said that mere possibility or apprehension of misuse, overuse or underuse of a law is no ground for declaring the provision as unconstitutional or ultra vires.

FRCA regulates the acceptance and utilization of foreign contributions by individuals or associations or companies in order to "safeguard the national interest."

The plea submitted that the enforcement of FCRA is "clouded by government discretion and political executive influence, leaving scope for non-application of mind in some cases and possibly vindictive, arbitrary action contrary to Article14 of Constitution of India, in some other cases."

The petition said proceedings under FCRA should be independent and insulated from extraneous influences.

"Executive is tasked with effective enforcement even against the political parties, politicians, legislators, quasi-political institutions with strong political affinity and non-governmental organizations (NGOs). However, legislators being the political master of the executive and with capability to influence the executive, enforcement against them and quasi-political institutions may not be effective in view of the conflict of interest. Justice should not only be done but also seen to have been done. Hence the need for constituting an independent quasi-judicial tribunal to oversee FCRA enforcement," the plea said.


Citation: 2023 LiveLaw (Del) 24

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