Delhi High Court: In a case wherein a petition was filed by Association for Democratic Reforms to seek directions to constitute an independent tribunal or committee to oversee the enforcement of the Foreign Contribution (Regulation) Act, 2010 (FCRA), the Division Bench of Satish Chandra Sharma, CJ. and Subramonium Prasad, J. dismissed the petition and held that the direction sought by the petitioners to set up a committee or Tribunal to oversee the functioning of the FCRA was unsustainable as setting up a committee or a tribunal was purely a policy decision.
The present petition was filed to remedy the various lacunas that plague the functioning of the FCRA, and the petitioners stated that the political party at the helm of affairs could have differing perspectives on development, public policy, and national interest. Further, the petitioners apprehend that as the bureaucracy works in close connection with the political executive, there was a conflict of interest which could mean that certain political parties were not penalized for transgressions under the FCRA.
The petitioners have also stated that the FCRA may also hinder judicial independence as the FCRA can be wrongfully used against judicial officers, who are also prohibited from accepting foreign contributions. Due to such possibilities of misuse within the FCRA, the Petitioners had filed the present petition seeking the establishment of an independent body to carry out the functioning of the FCRA as it would help bring consistency, uniformity, continuity in the functioning of the FCRA, and would also help keep the FCRA away from political interference.
Submissions on behalf of the Petitioners
The counsel for the petitioners submitted that the FCRA failed to meet the objective of restricting political parties from accepting foreign contributions due to the interference of the Central Government in its functioning and thus, pointed out Section 3(1)(e) of the FCRA, which prohibited a political party from accepting any foreign contributions. Further, it was contended that the enforcement of the FCRA was clouded by government discretion and political executive influence, due to the unbridled and excessive powers accorded to the Central Government.
Submissions on behalf of the Respondent
It was submitted that since only a miniscule number of cases were pending under the FCRA, establishing an independent tribunal or body would only be a waste of manpower of the judiciary and executive. Further, it was submitted that establishment of a tribunal or a committee would be a transgression into the domain of the Legislature.
Analysis, Law, and Decision
The Court analyzed the following sections of the FCRA:
Section 3 of the FCRA prohibited inter alia political candidates, members of the legislature, political parties and office bearers and other organizations of a ‘political nature’ from accepting foreign contributions.
Section 5 lays down the procedure to notify an organization of political nature. A proviso to this Section further stated that the Central Government ought to frame guidelines specifying ground on which an organization should be specified as an organization of a political nature.
Section 11(1) allows only a person who was registered and granted a certificate or given prior permission under the FCRA to receive foreign contribution. Central Government had the power to suspend or cancel such certification under Sections 13 and 14 of the FCRA.
Section 43 allows the Central Government to investigate offences under the FCRA by any authority, as it deemed fit.
Section 46 gives the Central Government the power to give directions to any authority to execute the FCRA.
Section 47 allows the Central Government to delegate its powers under the FCRA to any authority.
Central Government by virtue of Section 48(1) of the FCRA also had the power to make rules for carrying out the provisions of the FCRA.
The Court opined that the above-mentioned sections gave the Central Government the power to enforce the provisions of the FCRA and the Central Government had wide ranging powers to oversee the enforcement of the FCRA. The Court also opined that “the Central Government had the authority to bestow upon an organization the certification to get the foreign contributions and it also had the power to specify an authority to investigate offences under the FCRA. In effect, the Central Government played an instrumental role in enforcing the provisions of the FCRA”.
The issue for consideration before this Court was “whether the apprehension of unnecessary interference by the Central Government necessitates the establishment of a Tribunal or Committee, which would insulate the decisions taken under the FCRA from being influenced by the Central Government?”.
The Court opined that “it was a trite law that decisions taken by the Central Government were assumed to be bona fide in nature unless something to the contrary was placed on record. It was understood that the authority designated by the Central Government to investigate offences exercises statutory power. It was a trite law that when a body or person, as prescribed by the Central Government, passed an order under the FCRA, the law presumed that such order was bona fide. This Court could not assume mala fide and misuse of power in such a situation unless material to the contrary was placed on record”.
The Court also opined that apprehension that an Act could be misused was no ground for replacing the wisdom of the legislature with that of the judiciary. Therefore, the Court held that the prayer made by the petitioner seeking a direction to constitute an independent Tribunal/Committee to oversee the enforcement of FCRA could not be accepted.
The Court relied on John Paily v. State of Kerala, W.P. (C) 428 of 2021, wherein the Supreme Court held that “Courts do not possess the power to set up an adjudicatory committee or a tribunal”. Therefore, this Court held the direction sought by the petitioners to set up a committee or Tribunal to oversee the functioning of the FCRA was unsustainable. Moreover, the Court opined that setting up a committee or a tribunal was a purely policy decision and the legislature alone had the power to set up the tribunal or a committee. Thus, the Court dismissed the petition.
[Association for Democratic Reforms v. Union of India, 2023 SCC OnLine Del 102, decided on 10-1-2023]
Advocates who appeared in this case :
For the Petitioners: Advocate Prashant Bhushan
Advocate Neha Rathi
Advocate Suroor Mandar
For the Respondent: CGSC Shiva Lakshmi
Advocate Srishti Rawat
*Simranjeet Kaur, Editorial Assistant has put this report together