Nothing to show that FCRA is being used selectively against NGOs: Delhi High Court dismisses PIL for politically neutral body

The Delhi High Court on Tuesday dismissed a public interest litigation (PIL) petition seeking the constitution of a politically neutral body to oversee the implementation of the Foreign Contribution Regulation Act (FCRA) [Association for Democratic Reforms & Anr v. Union of India]. .A Division Bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad dismissed the plea filed by a non-profit organisation Association for Democratic Reforms (ADR). "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," the judgment stated..The Court said that setting up a committee or tribunal is purely a policy decision and that only the legislature has such a power under the statute. Passing a direction for setting up a such a committee or tribunal would effectively be an amendment to the FCRA, which is beyond the scope of judicial review and would be against the doctrine of separation of powers. "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," the Court said. .In its plea, ADR had argued that there is an inherent conflict of interest in the Central government implementing the Act. It was stated that a political party at the helm of affairs could have differing perspectives on development, public policy and national interest.ADR also expressed apprehensions regarding enforcement of the FCRA against the actions of political parties as well. The Court was told that since the bureaucracy works in close connection with the political executive, there is a possible conflict of interest which could mean that certain political parties are not penalised for transgressions under the FCRA. It was also stated that FCRA may hinder judicial independence, as it can be wrongfully used against judicial officers, who are also prohibited from accepting foreign contributions. .After considering the arguments and examining the petition, the judges said that ADR's entire case rests on the possibility of misuse of the FCRA by the political party at the helm of affairs.However, mere possibility that a statute will not be administered adequately is not ground for the statute to be invalidated or for the court to supplement its wisdom with that of the legislature, the Bench said..Further, it was noted that the petitioner has failed to place on record any data indicating the number of political parties that 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,” the judgment said.The Court concluded that the entire plea is built only on surmises and conjectures, and therefore, deserves to be dismissed..Advocates Prashant Bhushan, Neha Rathi and Suroor Mandar appeared for ADR.CGSC Shiva Lakshmi and Advocate Srishti Rawat appeared for the Centre..[Read judgment]