Delhi HC dismisses plea seeking independent body for FCRA

The Delhi High Court on Tuesday dismissed a petition seeking creation of a body independent of political executive to implement the law against foreign contributions, saying it cannot act on a possibility of misuse of the law by the ruling party.

A bench headed by Chief Justice Satish Chandra Sharma said setting up a committee or tribunal for administration of Foreign Contribution (Regulation) Act [FCRA], as prayed by petitioner NGO Association for Democratic Reforms, is a policy decision of the legislature and would effectively be an amendment to the law, which is beyond the scope of judicial review.

"It is evident that the entire case of the petitioner rests on the possibility of misuse of the FCRA by the political party at the helm of affairs... The mere possibility that a statute will not be administered adequately is not ground for the statute to be invalidated or for this court to supplement its wisdom with the legislature's. To set up a committee or tribunal is a purely policy decision," ruled the bench also comprising Justice Subramonium Prasad.

"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 court said.

In its 15-page judgement, the court noted that FCRA was enacted to regulate the acceptance and utilisation of foreign contribution by individuals and associations etc and it sought to prohibit foreign contributions to political parties as well as those that are detrimental to national interest. The court observed that the Centre plays an important role in enforcing and bringing into action the provisions of the FCRA and the petitioner did not place anything on record to support its claim of the law being used selectively against NGOs and other independent organisations.

It also rejected the petitioner's claim of certain political parties and legislators accepting contributions and hospitality from foreign sources in violation of the FCRA and observed that the petition was "entirely built on surmises and conjectures".

"The petitioner has failed to place on record any data indicating the number of political parties which have availed of foreign contribution, and have failed to be penalised under the FCRA. The apprehension of the petitioner that the FCRA may be misused for oblique motives is a bald averment and is entirely unfounded. Courts cannot pass a direction only on hypothesis," said the court.

"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," it added.

The court emphasised that it cannot assume mala fides and misuse of power unless material to the contrary is placed on record and the petitioner's prayer cannot be accepted as an attempt by a judicial body to set up a tribunal is directly in the teeth of the doctrine of separation of powers.

The petitioner, which filed the plea in 2015, had argued that the administration of 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.

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, the petitioner had claimed.

Central government counsel had opposed the petition and said that the case of the petitioner was only based on an apprehension of abuse of power.

It had 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.

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