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2023 (1) TMI 597
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....CRA i.e., some political parties, at the helm of affairs, may use the FCRA to suppress dissent from independent organisations and NGOs alike. Furthermore, the Petitioners have expressed apprehension regarding enforcement of the FCRA against the actions of political parties as well. The Petitioners apprehend that as the bureaucracy works in close connection with the political executive, there is possibly a conflict of interest which could possibly mean that certain political parties are not penalised for transgressions under the FCRA. The Petitioners have also stated 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 have filed the instant petition seeking the establishment of an independent body to carry out the functioning of the FCRA. This according to the Petitioners would help bring consistency, uniformity, continuity in the functioning of the FCRA, and would also help keep the FCRA away from political interference. 3. Mr. Prashant Bhushan, learned Counsel appearing for the Petitioner, an NG....
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....to evaluate the scheme of the FCRA. Section 3 of the FCRA prohibits inter alia judges, media personnel, members of a state-owned corporation from receiving foreign contributions. For the sake of convenience, the following Section is being reproduced below:- "Section 3. Prohibition to accept foreign contribution. (1) No foreign contribution shall be accepted by any-- (a) candidate for election; ... 1[(c) public servant, Judge, Government servant or employee of any corporation or any other body controlled or owned by the Government;] (d) member of any Legislature; (e) political party or office-bearer thereof; (f) organisation of a political nature as may be specified under sub-section (1) of section 5 by the Central Government; (g) association or company engaged in the production or broadcast of audio news or audio visual news or current affairs programmes through any electronic mode, or any other electronic form as defined in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000) or any other mode of mass communication; (h) correspondent or columnist, cartoonist, editor, owner of the association or company referred to in cla....
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....ited from accepting foreign contributions under the Representation of the People Act, 1951. The relevant portion of Section 29B of the Representation of the People Act, 1951 is reproduced below. "29B. Political parties entitled to accept contribution. - Subject to the provisions of the Companies Act, 1956 (1 of 1956), every political party may accept any amount of contribution voluntarily offered to it by any person or company other than a Government company: Provided that no political party shall be eligible to accept any contribution from any foreign source defined under clause (j) of section 2 of the Foreign Contribution (Regulation) Act, 1976 (49 of 1976)." 10. Other than this, as mentioned above, organisations which qualify as being of a 'political nature' are also prohibited from accepting foreign contributions. This is also, as stated, notified by the central government. Section 5 of the FCRA lays down the procedure to notify an organisation of political nature. Section 5(1) states that the Central Government may, having regard to the activities of the organisation or the ideology propagated by the organisation or the programme of the organisation or the association of ....
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....f the authority referred to in sub-section (4), specify such organisation as an organisation of a political nature not being a political party and make an order under sub-section (1) accordingly. (6) Every order under sub-section (1) shall be made within a period of one hundred and twenty days from the date of issue of notice under sub-section (2)..." 11. The penalty for contravening the above section is provided under Section 35. According to Section 35 of the FCRA, if any person accepts or aids any political party in accepting any foreign contribution or any currency or security from a foreign source, in contravention of any provision of FCRA, such person shall be punished with imprisonment for a term which may extend to five years, or with fine, or with both. 12. The regime envisaged under the FCRA allows only a person, who is registered and granted a certificate or given prior permission under the FCRA Act to receive foreign contribution. This has been provided under Section 11(1) of the FCRA. The procedure to obtain such certificate has been provided under Section 12(1) of the FCRA. Foreign contribution received by such certified organisations is supposed to be used only f....
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....on to get foreign contributions, it also has the power to specify an authority to investigate offences under the FCRA. In effect, the Central Government plays an instrumental role in enforcing the provisions of the FCRA. 16. In light of this, the question that arises before this Court is 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. This need, according to the Petitioner, is exacerbated since the proceedings under the FCRA are quasi-judicial in nature and according to the Petitioner, the tribunal or committee which is sought to be established under the FCRA may be presided over by a retired High Court or Supreme Court judge. 17. A perusal of the scheme of the Act shows 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 un....
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.... pronounced valid merely because it is administered in a manner which might not conflict with the constitutional requirements. In saying this we are not to be understood as laying down that a law which might operate, harshly but still be constitutionally valid should be operated always with harshness or that reasonableness and justness ought not to guide the actual administration of such laws." (emphasis supplied) 19. Hence, the mere possibility of a law being administered in a manner which may conflict with constitutional requirements does not render it invalid. The judiciary 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. 20. The Petitioners have stated that that there have been several instances of political parties and legislators accepting contributions and hospitalit....
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....ation. The role of the judiciary is initiated only after a law is enacted to test the legality of a statue on the known principles of judicial review (Refer to: Kalpana Mehta v. Union of India, (2018) 7 SCC 1; SC Chandra v. State of Jharkhand; and Suresh Seth v. Indore Municipal Corp., (2005) 13 SCC 287). 23. 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. Hence, an attempt by a judicial body to set up a tribunal is directly in the teeth of the doctrine of separation of powers. Recently, the Hon'ble Supreme Court vide Judgment dated 16.04.2021 in John Paily v. The State of Kerala, W.P. (C) No. 428/2021, has held that Courts do not possess the power to set up an adjudicatory committee or a tribunal by way of issuing a writ of mandamus. In light of this, the direction sought by the Petitioner to set up a Committee or Tribunal to oversee the functioning of the FCRA is unsustainable. This Court cannot direct setting up of a Committee or a Tribunal, simply due to the possib....