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TMI Blog2023 (1) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. There exists a basic difference between legislative and judicial functions, elucidated by the basic structure doctrine, which states that while the legislature makes laws, the executive enforces and administers it, and the judiciary tests the validity of legislation formulated by the Legislature. It has been laid down in a catena of judgments the courts cannot direct the legislature to frame or enact a law and in a particular manner. It cannot amend a statute or add provisions to the statute, as that too would be tantamount to judicial legislation. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or committee to oversee the enforcement of the Foreign Contribution (Regulation) Act, 2010 ( FCRA Act ). 2. The instant Petition has been filed in an attempt to remedy the various lacunas that purportedly plague the functioning of the FCRA. To begin with, the Petitioners have stated that the political party at the helm of affairs could have differing perspectives on development, public policy and national interest. Such political ideology and leaning of differing political parties also has a bearing on how they may use the FCRA 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 jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the counsels for the Petitioner and Respondent and perused the material on record. 6. The FCRA was enacted to regulate the acceptance and utilisation of foreign contribution or hospitality by individuals, associations, and companies. Further, it sought to prohibit the acceptance of foreign contribution or hospitality for activities detrimental to national interest. Pertinently, one stated objective of the FCRA is also to prohibit political parties from accepting foreign contributions. 7. At the outset, this Court finds it prudent 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) org ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepting foreign contributions. Section 3(1)(d) prohibits members of a legislature from accepting foreign contributions, Section 3(1)(e) extends this restriction to political parties and office bearers, and Section 3(1)(f) prohibits organisations of a political nature , as defined by the Central Government, from receiving contributions from a foreign source. Hence, inter alia, political candidates, members of the legislature, political parties and office bearers and other organisations of a political nature are disallowed from accepting foreign contributions. 9. Political parties are prohibited 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 cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Central Government giving reasons for not specifying such organisation as an organisation under sub-section (1): Provided that the Central Government may entertain the representation after the expiry of the said period of thirty days, if it is satisfied that the organisation was prevented by sufficient cause from making the representation within thirty days. (4) The Central Government may, if it considers it appropriate, forward the representation referred to in sub-section (3) to any authority to report on such representation. (5) The Central Government may, after considering the representation and the report of 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 cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity to investigate offences under the FCRA, the power to help execute the FCRA by any other authority and also allows it to delegate its powers to another body, if it deems fit. Aside from this, the Central Government by virtue of Section 48(1) of the FCRA also has the power to make rules for carrying out the provisions of the FCRA. These rules are then placed before the parliament, as stated under Section 49 of the FCRA Act. 15. From the foregoing Sections, it is abundantly evident that the central government has wide ranging powers to oversee the enforcement of the FCRA. Not only does it have the authority to bestow upon an organisation certification 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. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any element of invalidity. The converse must also follow that a statute which is otherwise invalid as being unreasonable cannot be saved by its being administered in a reasonable manner. The constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed. If so judged it passes the test of reasonableness, possibility of the powers conferred being improperly used is no ground for pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light of the requirements set out in Part III of the Constitution does not pass the test it cannot be 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reign contributions in its own favour. The instant Writ Petition is entirely built on surmises and conjectures. 22. Further, there exists a basic difference between legislative and judicial functions, elucidated by the basic structure doctrine, which states that while the legislature makes laws, the executive enforces and administers it, and the judiciary tests the validity of legislation formulated by the Legislature. It has been laid down in a catena of judgments the courts cannot direct the legislature to frame or enact a law and in a particular manner. Furthermore, it cannot amend a statute or add provisions to the statute, as that too would be tantamount to judicial legislation. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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