Case BriefsHigh Courts

Patna High Court: A Division bench of Sanjay Karol, CJ and S. Kumar, J., addressed two crucial issues revolving around the COVID-19 Pandemic.

Issues raised for consideration:

  • Whether guidelines of the NITI Aayog to the Chief Secretaries of the State governments are in nature of advisory communication or did it make it mandatory on the State government to engage CSOs/NGOs/voluntary organizations into the realm of relief operations?
  • Whether the civil society organizations have a right to be involved in relief operations during the times of crisis and disaster management, for ensuring the reach of relief to each needy person, especially in light of the Covid-19 response strategies issued by the international organizations, including the WHO and endorsed by the United Nations?

Advocate Parul Prasad by way of Public Interest Litigation brought to the Court’s notice the following issue:

“rights of Civil Society Organizations (CSOs) and Non-Government Organizations (NGOs) to aid and supplement the efforts of the State in providing relief to the needy during the pandemic.”

Petitioner submitted that due to the sheer size and population of the State of Bihar and continued government efforts, they were unable to reach each and every person in need.

Adding to the above, petitioner stated that in the interest of the rights of persons in need that a large number of voluntary organizations, CSOs and NGOs who were genuinely interested in helping out and were in an excellent position to assist the State Government, be engaged in the relief operations.

Petitioner prayed for the following reliefs:

  • Direction to the State of Bihar to follow directions and guidelines of the NITI Aayog for allowing representatives of the CSOs and NGOs to aid and supplement the efforts of the State in extending help for the needy during the pandemic.
  • Directions to permit the representatives of CSOs and NGOs to accompany State officials to ensure transparency in the distribution of relief materials provided by the CSOs.
  • Directions for the appointment of Nodal Officers at State and District levels to coordinate and regulate the work with CSOs & NGOs.
  • Directions to the State to ensure that arrangement of food and essential articles are made for Orphanages, Old Age Homes and Shelter Homes for the disabled, at the earliest.

NITI Aayog’s Directions: Advisory in nature

Chief Secretary of Bihar maintained that any direction by the NITI Aayog on the involvement of and taking help from CSOs were entirely advisory in nature and were only meant as a suggestion to supplement the State effort.

An explainer of Court’s opinion

  • Letter of NITI Aayog for involving CSOs and NGOs and whether it was binding on the State?

NITI Aayog acts as the quintessential platform of the Government of India to bring States to act together in the national interest, and thereby fosters Cooperative Federalism.

Role of NITI Aayog

Role of NITI Aayog is that of think tank limited to giving directions and policy inputs which means that such directions/recommendations can be acceptable to the Central Government or State Government or may not be acceptable to the Central Government or State Government.

Ground Realities of the State

Bench stated that it is inclined to accept the State’s view that has repeatedly asserted that communication or guidelines issued by NITI Aayog are purely advisory in nature and leave in the open to the State to adapt their own policies keeping in view the ground realities of the State.

Nature of NITI Aayog’s letters: Advisory 

Further, the Supreme Court’s decision in Poonam Verma v. Delhi Development Authority, (2007) 13 SCC 154 was cited, wherein the Court held that the guidelines by their very nature did not fall into the category of legislation, direct, subordinate or ancillary and therefore were advisory in nature.

The above position was also followed by the Supreme Court in its recent decision of Praneeth K v. UGC, 2020 SCC OnLine SC 592, where the communication at issue was a letter of UGC directing universities to compulsorily conduct final examinations by a fixed date. The advisory nature of the guidelines issued by the UGC was vehemently argued before the Court. However, stating that guidelines/directions become binding when issued in exercise of statutory powers vested in the authority, it was held that the universities were mandated to adopt the guidelines.

In the instant matter, there was nothing in NITI Aayog’s letter that would show that it comes in the exercise of a statutory authority vested in the NITI Aayog.

“…it is the stand of the NITI Aayog itself that the letter to the state government was advisory in nature and not binding on the state government.”

Hence, Bench agreed with the State that they are free to formulate their own policy with respect to the engagement of CSOs and NGOs.

  • Whether the CSOs and NGOs have an enforceable right against the State to be engaged in relief operations.

Every person has a right to receive effective help, which ensures to them a right to life and livelihood guaranteed under Article 21 of the Constitution.

In times of disaster, civil society has always stepped in to provide relief and assistance and has always worked towards ensuring the socio-economic rights of the most vulnerable.

Therefore, it is a matter of significance that a continued relationship of mutual trust exists between the State and these organizations in providing help to the needy.

The role of the civil Society in helping vulnerable groups and persons in need cannot be undermined.

Supreme Court in its decision of Public Union for Civil Liberties v. State of T.N., (2004) 12 SCC 381 acknowledged the above stand.

Further, the guidelines of the WHO in its Covid-19 preparedness strategies, direct all countries to establish national strategies and implement National Action Plans, and one of the core pillars of the plans highlights the need for coordination and planning efforts, which included interventions by NGOs and CSOs.

Good Governance and Salus Populi (Est) Suprema Lex

Good governance directly flows from this concept of governance and consists of ensuring the rule of law, effectiveness and accountability in governance processes.

In the Supreme Court’s decision of Manoj Narula v. Union of India, (2014) 9 SCC 1, the maxim, Salus Populi (est) suprema lex was invoked to stress that in a democracy, it was the public interest that is at the heart of good governance.

In a plethora of cases, the Apex Court has recognized the role of civil society in ensuring good governance in the country. Over the years the Court has directed the State to engage the civil society organizations in their efforts to ensure the utmost welfare of numerous vulnerable groups.

Bench reiterated the Supreme Court’s sentiment in Public Union for Civil Liberties v. State of T.N., (2004) 12 SCC 381, where the Court was pleased to point out that in many situations, the NGOs had a better position to reach out to the needy than the State itself and therefore the sate ought to leverage such services of the Civil Society.

Role of the Civil Society in a democracy cannot be understated to address the miseries brought about by the pandemic, but however, a coordinated effort of all functionaries is paramount.

Decision

For the State’s consideration, the High Court laid down the following directions for enforcement to the extent possible:

  • Actively interact and coordinate with NITI Ayog ensuring implementation of principles of good governance.
  • Allow CSOs and NGOs to conduct relief operations. Civil Society forms the fourth institution of democracy.
  •  Integrate the participation of CSOs and NGOs as part of the policy framework formulated by the State.
  • Strive to form policies that allow CSOs and NGOs to work in direct partnership with the State, especially socioeconomic welfare policies, such as those directed towards child education and nutrition, juvenile justice, women’s rights, transgender rights, etc.
  • Accountability of all institutions essential. Formulate SOPs, guidelines and codes of conduct to be adopted by the State as well as CSOs and NGOs in their performance of welfare and relief operations.
  • Leverage the information and knowledge-bases of CSOs and NGOs.
  • Create publicly accessible repositories of recognized CSOs and NGOs, maybe even organized in terms of their area of efforts and involve them in relevant projects.
  • Conduct regular consultations at every stage of relief work, with relevant CSOs and NGOs working at the ground level and are versed with the needs of the people.
  • Create a website/other online platforms for interaction with non-state actors, and as a forum for data and information sharing with the various stakeholders.
  • Have a regular dialogue, collaboration and coordination with CSOs and NGOs at all stages- of policy/ scheme formation, implementation and monitoring results.

While parting with its decision, Court stated that it hopes and expects that the State itself makes optimum use of all the aid and assistance being extended by all the organizations and by engaging them to ensure that relief reaches the maximum number of persons, including the farthest corners of Bihar.

In view of the above, the petition was disposed of. [Parul Prasad v. State of Bihar, Civil Writ Jurisdiction Case No. 5609 of 2020, decided on 09-09-2020]

Legislation UpdatesStatutes/Bills/Ordinances

The Foreign Contribution (Regulation) Amendment Bill, 2020

Lok Sabha passed the Foreign Contribution (Regulation) Amendment Bill, 2020 on 21-09-2020 and today i.e. 23-09-2020, Rajya Sabha passed the Bill.

Why has the bill been proposed?

The annual inflow of foreign contribution has almost doubled between the years 2010 and 2019, but many recipients of foreign contribution have not utilised the same for the purpose for which they were registered or granted prior permission under the said Act. Many of them were also found wanting in ensuring basic statutory compliances such as submission of annual returns and maintenance of proper accounts.

This has led to a situation where the Central Government had to cancel certificates of registration of more than 19,000 recipient organisations, including non-Governmental organisations, during the period between 2011 and 2019.

Therefore, there is a need to streamline the provisions of the said Act by strengthening the compliance mechanism, enhancing transparency and accountability in the receipt and utilisation of foreign contribution worth thousands of crores of rupees every year and facilitating genuine non-Governmental organisations or associations who are working for the welfare of the society.

Highlights of the Bill are as follows:

Prohibition to accept foreign contribution [Section 3]

No foreign contribution shall be accepted by any public servant, Judge, Government servant or employee of any corporation or any other body controlled or owned by the Government.

Prohibition to transfer foreign contribution to other person [Section 7]

Now the bill proposes the prohibition to the transfer of foreign contribution to another person and the requirement of valid certificate has also been removed. i.e earlier a person could transfer to the person with a valid certificate, but that has been removed now.

Restriction to utilise foreign contribution for the administrative purpose [Section 8]

The foreign contributions received shall be used only up to 20% which earlier was 50%.

Registration of certain persons with Central Government

[Section 11]

Only after the prior permission of the Central Government a person who is not registered shall accept the foreign contribution:

Provided that the Central Government, on the basis of any information or report, and after holding a summary inquiry, has reason to believe that a person who has been granted prior permission has contravened any of the provisions of this Act, it may, pending any further inquiry, direct that such person shall not utilise the unutilised foreign contribution or receive the remaining portion of foreign contribution which has not been received or, as the case may be, any additional foreign contribution, without prior approval of the Central Government:

Provided further that if the person referred to in sub-section (1) or in this sub-section has been found guilty.”.

Grant of Certificate of Registration [Section 12]

Every person who makes an application for grant of a certificate shall be required to open an FCRA Account in the manner mention in Section 17 Aand mention the details of such an account in his application.

Mandatory Aadhaar [Section 12 A] [New Section]

As an identification document for the purpose of this Act, Aadhaar number for all Office bearer or directors of all NGOs and other organization which is eligible for foreign contribution is mandatory. However, a passport or overseas citizen of India card is required in the case of foreign nationals.

Suspension of Certificate [Section 13]

Time limit for suspension of Certificate issued under FCRA has been stated to be as either 180 days or such further period not exceeding 180 days, as may be specified.

Surrender of Certificate [Section 14 A] [New Section]

If the Central Government is satisfied after inquiry as it deems fit, it can permit a person to surrender the certificate.

Foreign Contribution through Scheduled Bank [Section 17]

Now, under this provision, every person who has been granted a certificate or prior permission under Section 12 shall receive foreign contribution only in an account designated as “FCRA Account” which shall be opened by him in such branch of the State Bank of India at New Delhi.

Along with the above stated key highlights, amendments under Section 15 and 16 have also been made which can be referred to in the bill below.

Please read the bill here: BILL


Parliament

Case BriefsHigh Courts

Telangana High Court: A Division Bench of Raghvendra Singh Chauhan, CJ and B. Vijaysen Reddy, J. while addressing a matter with regard to old age homes, held that,

“Fundamental Rights of the elderly inmates are being violated, both by the Managers, who are supposed to run the Homes, and certainly by the State Government, who is legally bound to look after the rights of the elderly population.”

Member Secretary, Telangana State Legal Services Authority had submitted a report on the functioning of an Old Age Home.

Taking note of the same along with report of inspection conducted by Member Secretary and Secretary, DLSA with regard to old age homes managed either by the Non Government Organisations (NGOs), or by the Government, Court appointed Counsel Vasudha Nagaraj as an amicus curiae.

Amicus Curiae was directed to inspect the functioning of old age homes in the cities of Hyderabad and Secunderabad, for which the report has been submitted.

Report: 

Amicus Curiae, Vasudha Nagaraj informed the Court that there is no segregation on the basis of gender. In one of the Homes visited by her, she was horrified to notice that elderly lady, who was bed stricken, was sleeping in the same room, where there were two active elderly men.

Physical safety of the women is a grave concern.

No helpline or Hotline number available for the inmate to be in touch with the outside world.

The inmates are hapless and helpless elderly persons, who have been abandoned by their family, and are being ignored by the State.

Fundamental Rights of the elderly inmates are being violated, both by the Managers, who are supposed to run the Homes, and certainly by the State Government, who is legally bound to register, to maintain, to inspect, to fund, and to look after the rights of the elderly population.

Thus, in view of the above, Court directed Advocate General and Government Pleader to file a report on behalf of the Principal Secretary, Social Welfare Department and Principal Secretary, Women and Child Welfare on the following issues:

  • number of Homes which are registered, or not registered, which are functioning within Hyderabad/Secunderabad/Ranga Reddy District;
  • funding, that is being released by the Government for the maintenance, upkeep, and for providing the basic necessities and infrastructure in these Homes;
  • number of times that these Homes have been inspected by the Officers of the concerned Department.

Immediate requirement to create a helpline or a hotline and the same should be publicised and made known to the inmates of the Old Age Homes.

Respondent 2 is further directed to explore the possibility of seeking the cooperation of the Corporate Sector under the Corporate Social Responsibility so that the Companies can take up and manage, or at lease provide the best infrastructure that can be provided to the elderly inmates, keeping in mind their physical and mental needs.

Respondents 2 and 3 have also been directed to consider the possibility of having the Old Age Homes along with the Orphanage Children Home, Shelter Homes and other Homes.

Respondents are thus directed to inform the Court whether the above stated arrangement can be made in the State or not?

Report to be filed by 23rd June, 2020. Matter to be listed on 24th June, 2020. [Telangana State Legal Service Authority, Hyderabad v. State of Telangana, 2020 SCC OnLine TS 588 , decided on 15-06-2020]

Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of Abhay Shreeniwas Oka, CJ and  and B.V. Nagarathna, J. while dealing with certain issues amid COVID 19 outbreak, noted a very significant point, that,

media must ensure that no part of the stand taken by the State Government or no part of the orders passed by this Court should be misinterpreted or misquoted

In the present petition, the issue brought in is with regard to the Order issued by Kalaburgi District Administration which suggests that organizations distributing food to beggars, needy and homeless are committing violation of prohibitory order under Section 144 of Criminal Procedure Code, 1973.

In view of the above, it has been sought that the order should be modified in a manner that individuals, voluntary organizations, NGOs, etc. should be permitted to continue with the work of supplying the food to the underprivileged and poorer sections of the society.

Bench observed that,

“Voluntary organizations cannot be prevented from distributing food to the weaker sections of the society so long as they are following the norms of social distancing and taking other precautionary measures.”

Further the Court added to its observations that,

since its first order, Court has been suggesting to the State Government that activities of NGOs need to be coordinated. Thus State government must respond on the stated.

It will be appropriate if the State Government comes out with a direction for convening meetings with NGOs working in the field at various levels so that their activities can be co- ordinated

On a requisition made by the Chairpersons of the DLSAs to the concerned State officials, requisite number of passes shall be issued forthwith to enable the PLVs to perform the duties which are entrusted to them. The Director General of Police may also consider of issuing necessary guidelines to the police authorities to allow the PLVs to do their work on production of the certificates/passes issued by the DLSAs.

With regard to opening of shelter homes, Court stated that, considering the fact that nearly 1/3rd of positive cases of COVID-19 reported in the State are from Bengaluru Urban District, compliance by BBMP with the directions issued by the State Government is of utmost importance.

Another significant observation made through this order by the bench was that,

“… while reporting our orders, the media and in particular, the electronic media has to be very careful. The media must ensure that no part of the stand taken by the State Government or no part of the orders passed by this Court should be misinterpreted or misquoted.”

Cause of confusion and panic can be misrepresentation of the orders of this Court by the media. 

While noting the above observations and asking for State Governments response, the present petition is to be dealt on 16-04-2020. [Mohammed Arif Jameel v. Union of India, WP No. 6435 of 2020, decided on 13-04-2020]

Hot Off The PressNews

Supreme Court: The bench of L. Nageswara Rao and Deepak Gupta, JJ has held that the support to public causes by resorting to legitimate means of dissent like bandh, hartal etc. cannot deprive an organisation of its legitimate right of receiving foreign contribution. It said,

Refusing to declare Sections 5 (1) and 5 (4) of the Foreign Contribution (Regulation) Act, 2010 and Rules 3 (i), 3 (v) and 3 (vi) of the Foreign Contribution (Regulation) Rules, 2011 violative of Articles 14, 19 (1) (a), 19 (1) (c) and 21 of the Constitution of India, the bench said,

“It is clear from the provision itself that bandh, hartal, rasta roko etc., are treated as common methods of political action. Any organisation which supports the cause of a group of citizens agitating for their rights without a political goal or objective cannot be penalized by being declared as an organisation of a political nature.”

The Court explained that the purpose for which the statute prevents organisations of a political nature from receiving foreign funds is to ensure that the administration is not influenced by foreign funds. Prohibition from receiving foreign aid, either directly or indirectly, by those who are involved in active politics is to ensure that the values of a sovereign democratic republic are protected.

It, however, added that such of those voluntary organisations which have absolutely no connection with either party politics or active politics cannot be denied access to foreign contributions. Therefore, such of those organisations which are working for the social and economic welfare of the society cannot be brought within the purview of the Act or the Rules by enlarging the scope of the term ‘political interests’.

Hence, stating that it is only those organisations which have connection with active politics or take part in party politics, that are covered by Rule 3 (vi), the Court held,

“Any organisation which habitually engages itself in or employs common methods of political action like ‘bandh’ or ‘hartal’, ‘rasta roko’, ‘rail roko’ or ‘jail bharo’ in support of public causes can also be declared as an organisation of political nature, according to the guideline prescribed in Rule 3 (vi).”

[Indian Social Action Forum v. Union of India, Civil Appeal No.1510 of 2020, decided on 06.03.2020]

Hot Off The PressNews

The Government has given one final opportunity to all associations/organizations which have applied for renewal of their registration under the Foreign Contrubtion (Regulation) Act, 2010 (FCRA) but not uploaded their Annual Returns from Financial Year 2010-11 to 2014-15. All such NGOs can upload their missing Annual Returns along with the requisite documents within a period of 30 days, starting from May 15, 2017 to June 14, 2017. Further no compounding fee will be imposed on them for late filing of Annual Returns during this period.

This exemption is one time measure and available to those associations who upload their missing Annual Returns from FY 2010-11 to FY 2014-15 within this period. The renewal of registration under FCRA cannot be granted unless the Annual Returns are uploaded by the organization.

Click here for related Public Notice

Also visit online portal of FCRA Services: https://fcraonline.nic.in/home/index.aspx

Ministry of Home Affairs