Decide Representations Seeking FCRA Exemption For COVID Relief, Delhi High Court Directs Centre

The Delhi High Court on Tuesday directed the Competent Authority to treat as representation a plea seeking directions on the Union of India to exempt registered associations, organizations and individuals, prior permission under under Section 11 of the Foreign Contribution (Regulation) Act, 2010 to receive foreign contributions in the form of covid life saving equipments.

The Court directed the competent authority under the Union Ministry to decide the issues raised and grievances ventilated by the petitioners, keeping in mind the nature of relief sought.

A division bench comprising of Chief Justice DN Patel and Justice Jyoti Singh also observed that exemptions and relaxations are not a matter of right, and the same was the prerogative of the Government.

"It is a settled law that exemptions and relaxations under different Statutes are not a matter of right. It is the prerogative power of the Government to exempt or give relaxations with or without stringent conditions. It is not for the Court to direct the Government to exercise the power in a particular manner. It is evident from the pleadings and not denied by the learned counsel for the Petitioner during the course of hearing that before filing the present petition, Petitioner has not approached the Competent Authority seeking exemption under the Act."

Moved through Senior Advocate Deepak Prakash and drafted by Advocates Divyanga malik, Nachiketa Vajpayee, Prerna Robin and Jessica Bharadwaj, the petition prayed for relaxing the "stringent and time-consuming pre-conditions" for receiving foreign contributions in the form of donations, in the interests of the general public at large in exercise of powers under Section 50 of the Foreign Contribution (Regulation) Act, 2010.

Stating that the process of granting prior permission of the Union Government under Section 11 of the Act is a time consuming process thereby keeping away the registered NGOs to participate in the disaster mitigation efforts, the plea stated thus:

"That Section 11 of the Act 2010 as it stands today prohibits the acceptance of foreign contribution unless a certificate of registration is obtained under Sec 11 (1) or a prior permission is obtained under sec 11(2). Section 7 of the Act expressly prohibits transfer of foreign contribution to another person. Thus, majority of NGOs who are out at the grass root level are unable to distribute this lifesaving equipment to the patients."

The plea therefore submitted that the Non-profits, philanthropies, CSR arms of Corporates situated outside, who are desirous of supporting the Indian populace, are hindered by such a procedure.

"That it is the respectful submission of the Petitioner that the UOI can exempt the COVID related products like oxygen concentrator and lifesaving equipment from the definition of articles coming under the definition of foreign contribution for a limited period of 3-6 months so as to enable free flow of these equipment to India at this time of pandemic." The plea read further.

While disposing of the petition, the Court directed the Competent Authority under the concerned Ministry to treat the petition as a representation and decide the issues raised and grievances raised by the Petitioner, "in accordance with law, relevant rules, regulations and Government policies applicable to the facts of the case, as early as practicable, keeping in mind the nature of relief sought."

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