Delhi High Court Reserves Order On PIL Seeking Constitution Of 'Politically Neutral Body' For FCRA Implementation

The Delhi High Court on Monday reserved its decision on a public interest litigation seeking constitution of an independent and "politically neutral body" for implementation of Foreign Contribution (Regulation) Act to avoid misuse of law by the executive.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad will be passing order in the plea moved by Association for Democratic Reforms and Dr. E.A.S. Sarma, former Secretary to the Government of India.

Claiming that there is an "inherent conflict of interest" in the administration of the enactment, Advocate Prashant Bhushan today prayed for constitution of an independent committee comprising of retired judges, who are selected by the Chief Justice of India and not the Central Government.

"This needs a full time body. An appropriate body will be a committee of one or two or three retired judges who are selected not by the Government but by the Chief Justice of India….that would be an appropriate body which should be appointed," he submitted.

Bhushan further said that it is a "straight case" calling for intervention of the High Court directing the Government to constitute an independent body to administer the functioning of the FCRA, claiming that the same is "riddled with conflict of interest."

"The work under FCRA has become humungous. The Government in its reply has said that they have cancelled FCRA of thousands of organisations so its actually a full time job. A committee of retired people working full time will be an appropriate committee," he said.

On the other hand, the counsel appearing for the Centre opposed the plea on the ground that the prayer was seeking an amendment of the enactment which is a legislative function.

The counsel also said that mere possibility or apprehension of misuse, overuse or underuse of a law is no ground for declaring the provision as unconstitutional or ultra vires.

"In effect, he is asking for an amendment which is legislative domain. The cases are too minuscule to have another body constituted when the Act is itself providing….. the route of judicial review is always open to them," the counsel said.

FRCA regulates the acceptance and utilization of foreign contributions by individuals or associations or companies in order to "safeguard the national interest."

The plea submits that the enforcement of FCRA is "clouded by government discretion and political executive influence, leaving scope for non-application of mind in some cases and possibly vindictive, arbitrary action contrary to Article14 of Constitution of India, in some other cases."

As per the plea, proceedings under FCRA should be independent and insulated from extraneous influences.

"Executive is tasked with effective enforcement even against the political parties, politicians, legislators, quasi-political institutions with strong political affinity and non-governmental organizations (NGOs). However, legislators being the political master of the executive and with capability to influence the executive, enforcement against them and quasi-political institutions may not be effective in view of the conflict of interest. Justice should not only be done but also seen to have been done. Hence the need for constituting an independent quasi-judicial tribunal to oversee FCRA enforcement," the plea said.