The Delhi High Court recently dismissed a writ petition to constitute an independent tribunal or committee to oversee the enforcement of the Foreign Contribution Regulation Act, 2012 (‘FCRA Act’).

The Bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad observed that “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.”

In this case, the petition had been preferred seeking the establishment of an independent body to carry out the functioning of the FCRA as that would help bring consistency, uniformity, continuity in the functioning of the FCRA, and would also help keep the FCRA away from political interference.

Advocate Prashant Bhushan appearing for the petitioner argued that the enforcement of the FCRA was clouded by government discretion ad political executive influence, due to the unbridled and excessive powers accorded to the Central government. Therefore, in order to ensure that if functions effectively, the proceedings under FCRA needed to be independent and insulated from any extraneous influence from the Central Government.

CGSC Shiva Lakshmi appeared for the respondent and argued that the petition had been filed on the unfounded apprehension that the Central Government was likely to abuse its power under the FCRA and that if the prayer seeking establishment of a tribunal or committee was allowed, it would be a transgression into the domain of the legislature.

The issue dealt with 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 after considering the arguments observed that the entire case of the petitioner rested on the possibility of misuse of the FCRA by the political party at the helm of affairs at the Centre, abusing the provisions of the FCRA and said that “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.”

The Court further noted that the petitioner had failed to place on record any data indicating the number of political parties which had availed of foreign contribution, and had failed to be penalised under the FCRA and had also failed to show that FCRA was being used selectively against NGOs and other independent organisations as well.

Therefore, the Court said that “The apprehension of the Petitioner that the FCRA may be misused for oblique motives is a bald averment and is entirely unfounded.”

The Court further observed that an attempt by a judicial body to set up a tribunal was directly in the teeth of the doctrine of separation of powers and said that “To set up a committee or tribunal is a purely policy decision. 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.”

Accordingly, the writ petition was dismissed.

Cause Title- Association for Democratic Reforms & Anr. v. Union of India

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