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Transcript of Insaf v/s UoI in Delhi High Court
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL WRIT JURISDICTION)
Civil W.P No. _____ of 2011
(PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:-
Indian Social Action Forum (INSAF)
…PETITIONER
VERSUS
Union of India
…RESPONDENT
PAPER BOOK
(FOR INDEX KINDLY SEE INSIDE)
ADVOCATE FOR THE PETITIONER: AAGNEY SAIL NEW DELHI
DATED: August 5th, 2011
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL WRIT JURISDICTION)
Civil W.P No. _____ of 2011
(PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:-
Indian Social Action Forum (INSAF) …PETITIONER
VERSUS
Union of India …RESPONDENT
INDEX
SR.
NO.
PARTICULARS PAGE NO.
1. NOTICE OF MOTION. A
2. URGENT APPLICATION B
3. MEMO OF PARTIES C
4. SYNOPSIS AND LIST OF DATES D-K
5. WRIT PETITION UNDER ARTICLE 226 OF THE
CONSTITUTION WITH AFFIDAVIT
1-22
6. ANNEXURE – P1(colly):
Copy of Memorandum of Association of the
Petitioner, certificate of registration as well as
letter dated 18.2.2008 by the Ministry of Home
Affairs, Government of India regarding
registration under Foreign Contribution
(Regulations) Act, 1976.
22-31
7. ANNEXURE – P2:
Copy of the Foreign Contribution (Regulation)
Bill, 2006 [Bill No. CXII of 2006] as introduced
in the Rajya Sabha on 18.12.2006.
32-65
8. ANNEXURE – P3:
Copy of the 134th Report of the ‘Committee on
66-89
Home Affairs’ on the Foreign Contribution
(Regulation) Bill, 2006.
9. ANNEXURE – P4:
Copy of the National Policy on Voluntary Sector,
2007
90-102
10. ANNEXURE – P5:
Gazette copy of the Foreign Contribution
(Regulation) Act, 2010.
103-122
11. ANNEXURE – P6:
Gazette copy of the Foreign Contribution
(Regulation) Rules, 2011.
123-144
12. VAKALATNAMA
145
Through
(Aagney Sail)
Advocate for the Petitioner
#102, New Lawyers Chambers,
M.C.Setalvad Block, Supreme Court of India,
Bhagwan Das Road, New Delhi - 110001
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL WRIT JURISDICTION)
Civil W.P No. _____ of 2011
(PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:-
Indian Social Action Forum (INSAF) …PETITIONER
VERSUS
Union of India …RESPONDENT
NOTICE OF MOTION
To,
The Standing Counsel,
Union of India, Chamber Nos. 449-450,
Delhi High Court.
Please take note that the above noted matter will be listed on
10/08/2011 before the Hon’ble High Court of Delhi. It is, therefore,
requested to you to please enter your appearance on the said date.
PETITIONER
Through
Aagney Sail
Advocate for the Petitioner
#102, New Lawyers Chambers,
M.C.Setalvad Block, Supreme Court of India,
Bhagwan Das Road, New Delhi - 110001
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL WRIT JURISDICTION)
Civil W.P No. _____ of 2011
(PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:-
Indian Social Action Forum (INSAF) …PETITIONER
VERSUS
Union of India …RESPONDENT
URGENT APPLICATION To,
THE REGISTRAR,
OF THE HIGH COURT OF DELHI,
AT NEW DELHI.
Sir,
Kindly treat the accompanying Writ as an urgent one as per the
Delhi High Court Rules.
The ground of urgency is that the Foreign Contribution (Regulation)
Act, 2010 and its Rules, 2011 are challenged as being unconstitutional and
violative of the fundamental rights. The said Act and Rules are in force.
It is most humbly prayed that an urgent hearing be given.
Through
Through
Aagney Sail
Advocate for the Petitioner
#102, New Lawyers Chambers,
M.C.Setalvad Block, Supreme Court of India,
Bhagwan Das Road, New Delhi - 110001
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL WRIT JURISDICTION)
Civil W.P No. _____ of 2011
(PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:-
Indian Social Action Forum (INSAF) …PETITIONER
VERSUS
Union of India …RESPONDENT
MEMO OF PARTIES
Indian Social Action Forum (INSAF),
Through its General Secretary,
A-124/6, Katwaria Sarai,
New Delhi 110016 …Petitioner
Versus
The Union of India,
Through its Secretary,
Ministry of Home Affairs,
North Block, Central Secretariat,
New Delhi - 110001 …Respondent
SYNOPSIS & LIST OF DATES
This Writ Petition under Article 226 of the Constitution has been filed
challenging constitutional validity of Section 5(1) & 5(4) of the
Foreign Contribution (Regulation) Act, 2010 (hereafter referred to as
the ‘2010 Act’) and Rule 3(i), 3(v) & 3(vi) of the Foreign
Contribution (Regulation) Rules, 2011 (hereinafter referred to as the
‘Rules of 2011’) by which the Central Government has been given
unchecked and unbridled powers to categorize virtually any
organization as “organization of political nature, not being a political
party” and thereby deny acceptance of Foreign Contribution without
prior permission of the Central Government. The petitioner submits
that the said provisions in the 2010 Act and the Rules of 2011 are
violative of Article 14, 19(1)(a), 19(1)(c) & 21 of the Constitution.
LIST OF DATES
5th May, 2004 The Petitioner-INSAF is registered under the
Societies Registration Act, 1860 on 5 May 2004.
Indian Social Action Forum (INSAF) is a forum of
peoples’ movements, NGOs, human rights groups,
etc. all over India, involved in resisting
globalization, combating communalism and
defending democracy. INSAF believes that the
fundamental rights enshrined in the Constitution of
India need to be safeguarded against blatant and
rampant violations by the State and private
corporations. INSAF has actively campaigned
against land grab by corporations, ecological
disaster by mining companies, water privatization,
genetically modified food, hazardous nuclear
power, anti-people policies of international
financial institutions like World Bank and Asian
Development Bank, repeal of draconian anti-
democratic legislations like, Armed Forces Special
Powers Act and Unlawful Activities (Prevention)
Act. INSAF firmly believes in a secular and
peaceful social order and opposes communalism
and the targeted attacks on the lives and rights of
people including religious minorities. INSAF
regularly organizes campaigns, workshops,
conventions, fact findings, peoples tribunals,
solidarity actions for peoples movements and
educational-publications. INSAF is also actively
involved in international fora like Jubilee South,
NGO Forum on ADB, Asia Europe Peoples’ Forum,
Barcelona Consensus, etc.
The Petitioner-INSAF has organized several
public hearings and conventions like the
convention on repression of peoples movements in
December, 2010 in New Delhi, Independent
Peoples’ tribunal on development, displacement
and repression in Jharkhand during February,
2009.
INSAF has several publications in English and
Hindi to its credit like:
1. Peace Counts exhibition
2. Report of the “Independent Peoples tribunal
on development, displacement and
repression in Jharkhand”
3. Water laws in India, Pakistan, Bangladesh
and Nepal
4. Hoodwinked in the hothouse: false solutions
on climate change
5. UID: tacking profiling and surveillance of
citizens
6. Seedlings – Agrofuels
7. Seedlings – Indian Agrofuels
8. Seedlings – Climate Crisis
9. Panchayati Raj (in Hindi only)
23.05.2005 The draft Bill named ‘Foreign Contribution
Management and Control) Bill, 2005’, as was
presented to the Cabinet, has been uploaded on
the Ministry of Home Affairs website for seeking
comments/views of different stakeholders by
31.07.2005. The said Bill of 2005 was referred to
the Group of Ministers by the Cabinet on
23.06.2005.
24.06.2005 The Ministry of Home Affairs organized a national
& 25.06.2005 seminar on Foreign Contribution (Regulation) Act,
1976 wherein suggestions of various stakeholders
were considered.
18.12.2006 The Foreign Contribution (Regulation) Bill, 2006
[Bill No. CXII of 2006] (hereafter referred to as
‘the 2006 Bill’) was introduced in the Rajya Sabha
by Shri S. Reghupathy, Minister of State for Home
Affairs.
22.12.2006 In pursuance of the rules relating to the
Department-related Parliamentary Standing
Committees, the Chairman, Rajya Sabha, referred
the 2006 Bill to the Committee on Home Affairs for
examination and report within three months.
09.02.2007 The Committee on Home Affairs (hereafter
referred to as ‘the Committee’) issued a press
communiqué on the 2006 Bill inviting
views/suggestions.
12.06.2007 The Committee in its meeting heard the
presentation of the Home Secretary, Government
of India on the 2006 Bill.
16.07.2007 The Committee in its sittings heard the views of Dr
17.07.2007 Bimal Jalan, Member of Parliament, Rajya Sabha
& 03.10.2007 and ex-Governor, Reserve Bank of India (RBI) and
representatives of the RBI, State Bank of India,
ICICI Bank, HDFC Bank, Catholic Bishop’s
Conference of India, National Council of Churches
in India, National Council of YMCA of India,
Representatives of Voluntary Action Network India
and Institute of Chartered Accountants of India.
Dr. Bimal Jalan, Member of Parliament and ex-
Governor of RBI submitted before the Committee
that making the provisions in the 2006 Bill
stringent may result in stifling the legitimate
activities of the NGOs more than their illegitimate
activities.
Six major national Political Parties submitted that
India is a democratic republic. So everyone has
the right to be part of the political process.
Prohibition of ‘organization of political nature’ from
receiving foreign contribution seems to be
inconsistent with the rights guaranteed by the
Constitution of India.
06.11.2007 The Committee in its sittings heard
& 09.01.2008 representatives of Planning Commission on the
compatibility of the 2006 Bill vis-à-vis National
Policy on Voluntary Sector, a policy document of
Voluntary Sector Cell, Planning Commission,
Government of India. The Committee also heard
Heads of the four expert groups who had worked
on the draft policy.
The National Policy on Voluntary Sector, 2007 was
considered and approved by the Cabinet on
17.05.2007 and it was notified in the Gazette of
India on 31.07.2007. The National Policy on
Voluntary Sector, 2007 states that,
“Para 4.1: The independence of VOs allows them to explore alternative paradigms of development to challenge social, economic and political forces that may work against public interest and to find new ways to combat poverty, deprivation and other social problems. It is therefore crucial that all laws, policies, rules and regulations relating to VOs categorically safeguard their autonomy, while simultaneously ensuring their accountability.”
“Para 4.7: International funding of voluntary organizations plays a small, but significant part in supporting such organizations and their work in the country. An organization seeking foreign funding must be registered under the Foreign Contribution (Regulation) Act. This law prescribes stringent screening norms that often restrict the ability of VOs to avail foreign funds. When approved, there are problems like funds must be held in a single bank account, thus presenting enormous difficulties to VOs working at different locations. The Government will review the FCRA and simplify its provisions that apply to VOs, from time to time, in consultation with the joint consultative group to be set up by the concerned Ministry (as suggested under para 5.4).
18.02.2008 The Petitioner received registration under Foreign
Contributions (Regulation) Act, 1976. INSAF
receives foreign funds support from Bread for the
World (Germany), SWISSAID (Switzerland),
HIVOS (Netherlands), Grassroots International
(USA) and Global Greengrants Fund (USA).
15.05.2008 The Committee took up clause-by-clause
& 16.05.2008 consideration of the 2006 Bill.
04.07.2008 The Committee considered the draft Report in its
sitting on 04.07.2008 and adopted the same.
21.10.2008 The Committee’s 134th Report on the Foreign
Contribution (Regulation) Bill, 2006 is presented to
the Rajya Sabha and laid on the table of Lok
Sabha.
19.08.2010 The Foreign Contribution (Regulation) Bill, 2010
[Bill No. CXII-C of 2006] (hereafter referred to as
‘the 2010 Bill’) is passed by the Rajya Sabha.
27.08.2010 The 2010 Bill as passed by Rajya Sabha is debated
in the Lok Sabha and passed.
26.09.2010 The 2010 Bill receives the assent of the President
of India.
27.09.2010 The Foreign Contribution (Regulation) Act, 2010
(Act No. 42 of 2010) (hereafter referred to as the
‘2010 Act’) is notified in the Gazette of India –
Extraordinary – Part II – Section I.
29.04.2011 The Central Government by Gazette Notification
S.O. 909(E) appoints 01.05.2011 as the date on
which the provisions of the 2010 Act shall come
into force.
29.04.2011 The Central Government in exercise of the powers
conferred by Section 48 of the 2010 Act publishes
the Foreign Contribution (Regulation) Rules,
2011(hereafter ‘Rules of 2011’) vide Gazette
notification vide G.S.R. 349(E). The said rules are
to come into force on the same day as the 2010
Act. Rule 3 is relevant for the purpose of this writ
petition, which reads as follows:.
“3. Guidelines for declaration of an
organization to be of a political nature,
not being a political party.- The central
Government may specify any organization as
organization of political nature on one or
more of the following grounds:
(i) organization having avowed political
objectives in its Memorandum of Association
or bylaws:
(ii) any Trade Union whose objectives include
activities for promoting political goals:
(iii) any voluntary action group with objectives
of a political nature or which participates in
political activities;
(iv) front or mass organizations like Students
Unions, Workers’ Unions, Youth Forums and
Women’s wing of a political party;
(v) organization of farmers, workers, students,
youth based on caste, community, religion,
language or otherwise, which is not directly
aligned to any political party, but whose
objectives, as stated in the Memorandum of
Association or activities gathered through
other material evidence, include steps
towards advancement of political interests
of such groups;
(vi) any organization, by whatever name
called, which habitually engages itself in or
employs common methods of political
action like ‘bandh’ or ‘hartal’, ‘rasta roko’,
‘rail roko’ or jail bharo’ in support of public
causes.”
01.05.2011 The Foreign Contribution (Regulation) Act, 2010 &
the Foreign Contribution (Regulation) Rules, 2011
come into force. Consequently, the earlier act,
viz., the Foreign Contribution (Regulation) Act,
1976 is repealed.
05.08.2011 The present Writ Petition filed under Article 226 of
the Constitution challenging the constitutional
validity and ultra-vires nature of Section 5(1) &
5(4) of the 2010 Act and Rules 3 (i), 3(v) and
3(vi) of the Rules of 2011.
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL WRIT JURISDICTION)
Civil W.P No. _____ of 2011
(PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:
Indian Social Action Forum (INSAF),
Through its General Secretary,
A-124/6, Katwaria Sarai,
New Delhi 110016 …Petitioner
Versus
The Union of India,
Through its Secretary,
Ministry of Home Affairs,
North Block, Central Secretariat,
New Delhi - 110001 …Respondent
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION
To,
The Hon’ble Chief Justice and his Hon’ble
Companion Justices of the High Court of Delhi at New Delhi
The humble Petition of the above named petitioner most respectfully
sheweth:
1. This Writ Petition under Article 226 of the Constitution has
been filed challenging constitutional validity of Section 5(1) &
5(4) of the Foreign Contribution (Regulation) Act, 2010
(hereafter referred to as ‘2010 Act’) and Rules 3(i), 3(v) &
3(vi) of Foreign Contribution (Regulation) Rules, 2011
(hereinafter referred to as the ‘Rules of 2011’) by which the
Central Government has been given unchecked and unbridled
powers to categorize virtually any organization as
“organization of political nature, not being a political party”
and thereby deny acceptance of Foreign Contribution without
prior permission of the Central Government. The petitioner
submits that the said provisions in the Act of 2010 and the
Rules of 2011 are violative of Article 14, 19(1)(a), 19(1)(c) &
21 of the Constitution of India.
2. That the facts relevant for the purpose of this writ petition are
as follows:
2.1 Indian Social Action Forum (INSAF) is a forum of peoples’
movements, NGOs, human rights groups, etc. all over
India, involved in resisting globalization, combating
communalism and defending democracy. INSAF believes
that the fundamental rights enshrined in the Constitution of
India need to be safeguarded against blatant and rampant
violations by the State and private corporations. INSAF has
actively campaigned against land grab by corporations,
ecological disaster by mining companies, water
privatization, genetically modified food, hazardous nuclear
power, anti-people policies of international financial
institutions like World Bank and Asian Development Bank,
repeal of draconian anti-democratic legislations like, Armed
Forces Special Powers Act and Unlawful Activities
(Prevention) Act. INSAF firmly believes in a secular and
peaceful social order and opposes communalism and the
targeted attacks on the lives and rights of people including
religious minorities. INSAF regularly organizes campaigns,
workshops, conventions, fact findings, peoples tribunals,
solidarity actions for peoples movements and educational-
publications. INSAF is also actively involved in international
fora like Jubilee South, NGO Forum on ADB, Asia Europe
Peoples’ Forum, Barcelona Consensus, etc.
2.2 The Petitioner-INSAF has organized several public hearings
and conventions like the convention on repression of
peoples movements in December, 2010 in New Delhi,
Independent Peoples’ Tribunal on Development,
Displacement and repression in Jharkhand during February,
2009.
INSAF has several publications in English and Hindi to its
credit like:
1. Peace Counts exhibition
2. Report of the “Independent Peoples tribunal on
development, displacement and repression in
Jharkhand”
3. Water laws in India, Pakistan, Bangladesh and Nepal
4. Hoodwinked in the hothouse: false solutions on
climate change
5. UID: tacking profiling and surveillance of citizens
6. Seedlings – Agrofuels
7. Seedlings – Indian Agrofuels
8. Seedlings – Climate Crisis
9. Panchayati Raj (in Hindi only)
The Petitioner shall submit before this Hon’ble Court
several other publication by Petitioner – INSAF and details
of its activities.
2.3 The Petitioner-INSAF is registered under the Societies
Registration Act (XXI) of 1860 on 5 May 2004 and under
Foreign Contributions (Regulation) Act, 1976 on 18
February 2008. INSAF receives foreign funds support from
Bread for the World (Germany), SWISSAID (Switzerland),
HIVOS (Netherlands), Grassroots International (USA) and
Global Greengrants Fund (USA). The Petitioner shall
produce, if required, funding it received from these
organizations for its different programmes. A true and
correct copy of the Memorandum of Association of the
Petitioner, certificate of registration as well as letter dated
18.2.2008 by the Ministry of Home Affairs, Government of
India regarding registration under Foreign Contribution
(Regulations) Act, 1976 is hereto marked and annexed as
ANNEXURE P-1 (Colly).
2. That the Ministry of Home Affairs drafted the Foreign
Contribution (Management and Control) Bill, 2005 and invited
public comments. However, after this Bill of 2005 was referred
to the Group of Ministers by the Cabinet on 23.06.2005 it was
allowed to lapse. Thereafter a second Bill was drafted by the
Ministry of Home Affairs known as the Foreign Contribution
(Regulation) Bill, 2006 (hereafter referred to as ‘Bill of 2006’).
This Bill of 2006 was introduced in the Rajya Sabha on
18.12.2006 and was referred to the Committee on Home
Affairs. A true and correct copy of the said Bill of 2006 is
hereto marked and annexed as ANNEXURE – P2.
3. That the Committee on Home Affairs (hereafter referred to as
‘Committee’) after inviting suggestions from the public on the
Bill of 2006 heard representations made by various stake
holders including Planning Commission, Ministry of Home
Affairs, Reserve Bank of India, banks, civil society, national
Political parties, Institute of Chartered Accountants of India
etc. Dr. Bimal Jalan, Member of Parliament and ex-Governor
of RBI submitted before the Committee that,
“5.1 Suggestions of Dr. Bimal Jalan: Dr. Jalan appeared
before the Committee on 16th July, 2007 and expressed
his viewpoints on the Bill. He stated that the NGOs,
particularly small organizations engaged in social, health
and educational work for disadvantaged sections of the
society were highly concerned about the implications of
this Bill. His main concern was about cumbersome and
bureaucratic administrative provisions in the Bill and
requested for review of this aspect with a view to
simplifying them.”
4. That similarly, before the Committee six major national
Political Parties submitted that,
“5.4(iv) India is a democratic republic. So everyone
has the right to be part of the political process. Clause 3
(1) (f), whereby the organization of political nature is
prohibited from accepting foreign contribution as
specified by the Central Government, seems to be
inconsistent with the rights guaranteed by the
Constitution of India. Therefore, Clauses 3(1) (f), 5(1)
and 54 (2) (b) be deleted.”
5. That NGOs who appeared before the Committee pointed out
that the provisions of the Bill of 2006 were not in conformity
with the National Policy on Voluntary Sector, 2007 formulated
by the Planning Commission. This has been referred to in para
6 of the report of the Committee.
6. That, the Committee on 21.10.2008 submitted its 134th
Report on the Foreign Contribution (Regulation) Bill, 2006 to
the Rajya Sabha and Lok Sabha. A true copy of the said 134th
report of the Committee on Home Affairs is hereto marked and
annexed as ANNEXURE – P3.
7. That the Committee heard representatives of the Planning
Commission on the compatibility of the Bill of 2006 vis-à-vis
the National Policy on Voluntary Sector (a policy document of
the Voluntary Sector Cell, Planning Commission, Government
of India). The National Policy on Voluntary Sector, 2007 was
considered and approved by the Cabinet on 17.05.2007 and it
was notified in the Gazette of India on 31.07.2007. The
National Policy on Voluntary Sector, 2007 states that,
“Para 4.1: The independence of VOs allows them to explore alternative paradigms of development to challenge social, economic and political forces that may work against public interest and to find new ways to combat poverty, deprivation and other social problems. It is therefore crucial that all laws, policies, rules and regulations relating to VOs categorically safeguard their autonomy, while simultaneously ensuring their accountability.”
“Para 4.7: International funding of voluntary organizations plays a small, but significant part in supporting such organizations and their work in the country. An organization seeking foreign funding must be registered under the Foreign Contribution (Regulation) Act. This law prescribes stringent screening norms that often restrict the ability of VOs to avail foreign funds. When approved, there are problems like funds must be held in a single bank account, thus presenting enormous difficulties to VOs working at different locations. The Government will review the FCRA and simplify its provisions that apply to VOs, from time to time, in consultation with the joint consultative group to be set up by the concerned Ministry (as suggested under para 5.4).
A true copy of the National Policy on Voluntary Sector, 2007 is
hereto marked and annexed as ANNEXURE – P4.
8. That the Foreign Contribution (Regulation) Bill, 2010 [Bill No.
CXII-C of 2006] (hereafter ‘Bill of 2010’) is passed by Rajya
Sabha on 19.08.2010. In the Rajya Sabha, the following
important debates took place:-
7.1 Shri M. Rama Jois (Rajya Sabha member from Karnataka)
whose book ‘Legal and Constitutional History of India’ is
prescribed by the Bar Council of India for the law degree,
made the following comments,
“ … Now, I will give an example. What about trade unions? There are a number of trade unions which are also registered organisations and about most of the trade unions we know to which political parties they are affiliated or belong to. If this sweeping power is given to the Central Government, the Central Government may say that a trade union is affiliated to a particular party, therefore, prevent them from getting foreign contribution. Therefore, my objection is that this 'political nature' is a very dangerous, wide and very vague expressions. The Supreme Court has held if a provision is capable of both use and abuse, then, it is violative of article 14 of the Constitution. Right from 1958 the Supreme Court in Ramkrishan Dalmia's case has said that any provision made by the legislation cannot be such that it is both capable of use as well as abuse. This is what has happened. Therefore, which is an organisation of a political nature is left to the sweet will of the Central Government. Section 5 provides that before making an order under sub-section (I), the Central Government shall give the organisation in respect of whom the order is proposed to be made, a notice in writing informing it of the ground or grounds, on which it is proposed to be specified as an organisation of political nature. So, the Government can issue a notice. It can say, 'your organisation is considered, in our opinion, an organisation of political nature, and therefore, we want to prohibit you from getting foreign contribution.' What do you say, Sir? Then, there is another interesting provision in Clause 5(2), which says, 'provided the Central Government may by rule specify' etc. Sir, 5(3) says that the organisation to whom a notice has been served under sub-section (2), may, within a period of thirty days from the date of the notice, make a representation to the Central Government giving reasons for not specifying such organisation as an organisation under sub-section (I).
The meaning is that the Central Government will issue notice stating reason to declare an association as of a political nature. Then they have given the right of representation. Then what is going to be done with that representation you see, provided that the Central Government may entertain. So, the time limit is there, more time is also given. Sir, subclause 4 is most important. It says that 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. What is that authority? First of all, it is left to the decision of the Central Government to refer or not to refer. Now, even if it decides to refer the representation given by a particular party or association, then, it can refer to some authority. Which is that authority, it is not specified. Then the Central Government may, after considering the representation and the report of the authority, etc. So, the Central Government may send it to some authority and that whatever opinion is given by that authority is taken into consideration and the Central Government will take a decision. My submission is you are doing it without specifying the authority, the status of the authority to which the representation is to be referred. My first objection is to power to declare an association of a political nature is itself dangerous. It is totally going to destroy the Fundamental Rights under article 19 (1) (C) of the Constitution. Even trade union activities can be barred from getting foreign contribution by exercise of this power. As far as this authority is concerned, the word authority is also extremely vague. It can be some authority of the choice of the Government. They can take the report of that authority and pass the final order.”(emphasis supplied)
7.2 In response to the queries raised by members including
Shri M. Rama Jois and others, Shri P. Chidambaram, Home
Minister said that,
“Sir, many of the things which the hon. Members said have to be dealt with in the rules. They may appear vague, but any law, Mr. Rama Jois knows, if you read it without the rules will appeal to be vague. But, many of the things have to be provided for in the rules.
Wherever it is necessary, wherever it becomes excessive delegation, we have provided it here. But most of the things have to be done in the rules and guidelines and that is why I
think any law which is drafted will appear to vest a large amount of discretion. But the rule making power is intended to control that discretion or power. Many of these will indeed be dealt with under the rules.
Now, Mr. Rama Jois mentioned clause 5. Clause 5 is already there in Section 5 of the present Act. You mentioned Clause 9. Clause 9 is already Section 10 in the present Act. These are not new provisions. These are the provisions which have been repeated because these are wholesome provisions that have stood the test of law. 'Political nature', in fact, we have said that the present law is rather vague. The new law says on political nature we will lay down guidelines, we will frame rules, we will issue a show cause notice, and we will give the reasons why an organisation is being called an organisation of a political nature. We will get their reply, and then we will pass an order either of placing them in the category of organizations of a political nature, and publish that notification. If it is abused, if it is unreasonable, they know how to challenge it in the court of law. In fact, we are making it more transparent, we are making it more rule based and more reason based.”(emphasis supplied)
9. The Parliament passed the Bill of 2010 enacting the Foreign
Contribution (Regulation) Act, 2010 [42 of 2010] (hereafter
referred to as ‘Act of 2010’) by which foreign contribution and
foreign hospitality has been regulated. The Act of 2010
received the assent of the President of India on 26.09.2010
and was notified in the Gazette of India on 27.09.2010. The
Act of 2010 comes into force from 01.05.2011 vide Central
Government notification repealing the earlier act, viz., the
Foreign Contribution (Regulation) Act, 1976. The objective of
the Act of 2010 reads as follows:
“An Act to consolidate the law to regulate the
acceptance and utilisation of foreign contribution or
foreign hospitality by certain individuals or associations
or companies and to prohibit acceptance and utilization
of foreign contribution or foreign hospitality for any
activities detrimental to the national interest and for
matters connected therewith or incidental thereto.”
10. That under Section 3 of the Act of 2010, it is, inter-alia,
provided that no foreign contribution shall be accepted by
any; candidate for election, journalists, judge, Government
servant or employee, member of any Legislature, political
party, organisation of political nature, association or company
involved in audio news or audio visual news. Under Section 5
of the Act of 2010, the procedure for notifying an organisation
of a political nature has been provided. Section 5 of the Act of
2010 being relevant for the purpose of this Writ Petition is
quoted below:
“5. Procedure to notify an organisation of a political nature. –
5.1 The Central Government may, having regard to the activities
of the organisation or the ideology propagated by the
organisation or the programme of the organisation or the
association of the organisations with the activities of any
political party, by an order published in the Official Gazette,
specify such organisation as an organisation of a political
nature not being a political party, referred to in clause (f) of
sub-section (1) of section 3:
Provided that the Central Government may, by rules
made by it, frame the guidelines specifying the ground
or grounds on which an organisation shall be specified
as an organisation of a political nature.
5.2 Before making an order under sub-section (1), the Central
Government shall give the organisation in respect of whom
the order is proposed to be made, a notice in writing
informing it of the ground or grounds, on which it is proposed to
be specified as an organisation of political nature under that
sub-section:
5.3 The organisation to whom a notice has been served under
sub-section (2), may, within a period of thirty days from the
date of the notice, make a representation 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.
5.4 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.
5.5 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.
5.6 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):
Provided that in case no order is made within the said
period of one hundred and twenty days, the Central
Government shall, after recording the reasons therefor,
make an order under sub-section (1) within a period of
sixty days from the expiry of the said period of one
hundred and twenty days.” (emphasis supplied)
A true and correct Gazette copy of the Foreign Contribution
(Regulation) Act, 2010 is hereto marked and annexed as
ANNEXURE – P5.
11. According to the said Section 5, the Central Government may
by an order published in the official gazette declare
“organisation of a political nature, not being a political party"
means such organisation as the Central Government may,
having regard to the ‘activities’ of the organisation or the
‘ideology’ propagated by the organisation or the ‘programme’
of the organisation or the ‘association of the organisation’ with
the activities of any political party, by an order published in
the Official Gazette, specified in this behalf. This part of
Section 5 of the Act of 2010 is amenable to abuse because on
the basis of activities, ideology, association or programme of
the organisation, which expressions have not been defined or
explained, an organisation can be declared to be that of
political nature. The guidelines framed under the rules also do
not explain these expressions.
12. That under Section 48 of the Act of 2010, the Central
Government published in the Gazette of India the Foreign
Contribution (Regulation) Rules, 2011 (hereafter referred to as
‘Rules of 2011’). The said Rules of 2011 came into force on
the same day as the Act of 2010 i.e. on 01.05.2011. Under
Rule 3, guidelines have been provided for declaration of an
organization to be of a political nature though it is not a
political party. The said Rule 3 is quoted here for ready
reference:
“3. Guidelines for declaration of an organization to be of a
political nature, not being a political party.- The central
Government may specify any organization as organization of
political nature on one or more of the following grounds:
(i) organization having avowed political objectives in its
Memorandum of Association or bylaws:
(ii) any Trade Union whose objectives include activities for
promoting political goals:
(iii) any voluntary action group with objectives of a political
nature or which participates in political activities;
(iv) front or mass organizations like Students Unions,
Workers’ Unions, Youth Forums and Women’s wing of a
political party;
(v) organization of farmers, workers, students, youth
based on caste, community, religion, language or
otherwise, which is not directly aligned to any political
party, but whose objectives, as stated in the
Memorandum of Association or activities gathered
through other material evidence, include steps towards
advancement of political interests of such groups;
(vi) any organization, by whatever name called, which
habitually engages itself in or employs common
methods of political action like ‘bandh’ or ‘hartal’, ‘rasta
roko’, ‘rail roko’ or jail bharo’ in support of public
causes.”(emphasis supplied)
A true and correct copy of the Foreign Contribution
(Regulation) Rules 2011 is hereto marked and annexed as
ANNEXURE – P6.
6. That the petitioner is challenging constitutional validity of
Section 5(1) & 5(4) of the Foreign Contribution (Regulation)
Act, 2010 and Rules 3(i), 3(v) & 3(vi) of Foreign Contribution
(Regulation) Rules, 2011 and has not filed any other writ
Petition challenging the same before this Hon’ble Court or any
other Court.
GROUNDS:
1. That the present Writ Petition has been filed on the following,
among other, grounds.
1.1 Because under Section 5(1) of Act of 2010, the Central
Government has been given powers to declare an
organization to be of political nature and to publish the
order regarding such organization in the Official Gazette
having regard to the activities of the organization, its
ideology, its programs and its associations. The Section,
however, does not provide for the guidelines on the basis of
which the said declaration could be made. The expressions
‘ideology’, ‘activities’, ‘programme’ and ‘association of the
organisation’ have not been explained or defined anywhere
in the Act of 2010 or the Rules of 2011. The Petitioner
submits that in absence of any precise definitions of these
expressions they are amenable to abuse resulting in
arbitrary exercise of powers and are therefore violative of
Article 14 of the Constitution.
1.2 Because under Section 5(4) of the Act of 2010, the term
‘authority’ has been mentioned to which representation
may be forwarded. The authority has not been defined
anywhere. It is important that the authority should be an
independent authority so that it can give an independent
and unbiased report to the Central Government for its
consideration under Section 5(5) of the Act of 2010.
Without specifying the authority and its functions and
parameters the whole machinery provided under Section 5
of the Act of 2010 becomes unworkable. As a result, the
decision under Section 5 of the Act of 2010 becomes
arbitrary affecting the rights of the organisations receiving
foreign contribution.
1.3 Because the guidelines have been provided only under the
Rules of 2011, in particular, vide Rule 3. It is submitted
that the guidelines in Rule 3 are extremely wide, without
any checks and gives arbitrary discretion, which render the
said Rule being subjected to misuse and abuse. These
Rules suffer both from unreasonableness, arbitrariness as
well as for not creating a discernible classification between
the political activities and other social or public activities.
The Rules seek to interfere with the activities of the
organization in important areas of national life which are
impermissible under this Constitution. The Rules 3(i), 3(v)
& 3(vi) are therefore contrary to the object of the Act of
2010 as well as ultra-vires Articles 14, 19(i)(a), 19(1)(c) &
21 of the Constitution.
1.4 Because under Rule 3(i) of Rules of 2011, the Central
Government may declare an organization to be of political
nature in case the organization, in its memorandum of
association or byelaws, has avowed ‘political objective’. The
Rule nowhere defines what is meant by ‘political objective’.
In a democracy governed by the Rule of Law and having a
written Constitution, it is permissible that an organization
or an individual protests or insists on the government
keeping up its political objective consistent with the
Constitution and Directive Principles. The term ‘political
objective’ includes the governance as well as policies of the
Government. The said provision is thus totally unguided,
vast and confers arbitrary and unreasonable powers to the
Central Government and therefore, violative of the Article
14 of the Constitution.
1.5 Because under Rule 3(v) of the Rules of 2011, an
organization of farmers, workers, students, youth based on
caste, community, religion, language or otherwise which is
not directly aligned to any Political party, can be
categorized as a political organization if:
(a) Its objective include steps towards advancement
of political interest of such groups; or
(b) Activities gathered through material evidence
include steps towards advancement of political
interest of such group.
(Emphases supplied)
It is clear from the above for e.g. an organization of farmers
indulges in an activity for the purpose of empowering itself for
realization of its human rights/ Fundamental Rights, which
may include political empowerment as well, it may be put
under the category of “organization of a political nature.” The
Act of 2010 or the Rules of 2011 do not define what is the
meaning and scope of the expression “political interest.”
Under the International Convenant on Civil and Political
Rights, 1967 (hereafter referred to as ‘ICCPR’) of which India
is a signatory, treats the civil and political rights as part of
human rights. Under the provisions of the Protection of Human
Rights Act, 1993 (hereafter referred to as ‘Act of 1993).
‘Human Rights’ have been defined under Section 2 (d), which
means the rights relating to life, liberty, equality and dignity of
the individual guaranteed by the Constitution or embodied in
the International Covenants. ‘International Covenants’ is also
defined under Section 2(f) which mean covenant on Civil and
Political Rights (ICCPR) & International Covenants on
Economic Social and Cultural Rights (ICESCR). Therefore,
what has been provided as ‘political right’ in the ICCPR has
been taken to be part of Human Rights. The aim and object of
the Act of 1993 is to promote, protect and implement the civil
and political rights of an individual/organization. It is,
therefore, not understood on what basis for e.g. the farmers’
organization will be termed as political organization to deny
foreign contribution. The denial of foreign contribution will, in
fact, result in infringement of activities of the organization
which are a necessary and inalienable part of democracy and
Rule of Law. Such an action will not be consistent with the
values of a Sovereign democratic republic which recognizes
the right of protest. The said provision therefore is violative of
not only Article 14 but also 19(1)(a) & 19(1)(c) of the
Constitution. The power which has been given in the Rules of
2011, therefore, is un-canalized, arbitrary and does not make
a difference between a ‘political activity’ and advancement of
political rights of an organization. It is, therefore, violative of
Article 14 of the Constitution.
1.6 Because Rule 3(vi) of the Rules of 2011, is also
unconstitutional for the reason that if an organization indulges
in ‘bandh’, ‘hartal’, ‘rasta roko’, ‘rail roko’, or jail bharo’,
which actions are in support of public causes, it will be termed
as “political action” and such organization will be declared as
a political organization. In a democracy, some of these actions
are accepted methods of expressing the public grievances.
They are the only tools in the hands of people to show their
disagreement or dissatisfaction with the functioning of the
Government. The said provision also suffers from the vice of
arbitrariness and unreasonableness because by using these
arbitrary guidelines any organization which has indulged in
‘bandh’, ‘hartal’ ‘jail bharo’ etc. will be termed as a political
organization and will be denied foreign contribution. By this
action of the Central Government, the right of a
Citizen/Organization of its democratic right of protest will be
seriously affected. The said provision, therefore, is violative of
Articles 14 and 19(1)(a) of the Constitution.
1.7 Because the rights conferred under the ICCPR, among other
covenants, have been accepted as a part of municipal law by
the Supreme Court as they enhance the content of Article 21
of the Constitution. [vide: PUCL Vs UOI and Ors 1997 (3) SCC
433 and Kapila Hingorani Vs. State of Bihar 2003 (6) SCC 1].
Under the Protection of Human Rights Act, 1993 the provisions
of ICCPR have, in fact, been treated as part of Article 21 of the
Constitution. By denying the political advancement or political
expression, an organization’s human rights which are part of
Article 21, have been curtailed. Similarly, by categorizing
certain actions as being political for the purpose of denying
them certain benefits under foreign contribution, in fact, really
amounts to suppression of their human rights as well as
freedom of expression under Article 19(1)(a) of the
Constitution. These rules are therefore, unconstitutional.
1.8 Because it has been held in Himmat Lal K Shah Vs
Commissioner of Police Ahmedabad [(1973) 1 SCC 227] that,
“Para : It seems to us that it follows from the above
discussion that in India a citizen had, before the
Constitution, a right to hold meetings on public streets
subject to the control of the appropriate authority
regarding the time and place of the meeting and subject
to considerations of public order.
Para : If the right to hold public meetings flows from
Art. 19 (1) (b and Art. 19 (1) (d) it is obvious that the
State cannot impose unreasonable restrictions.
Para : Public meeting in open spaces and public streets
forms part of the tradition of our national life. In the
pre- Independence days such meetings have been held
in open spaces and public streets and the people have
come to regard it as a part of their privileges and
immunities.”
Further, it has been held in Rohtas Industries Ltd Vs Rohtas
Industrial Staff Union [(1976) 2 SCC 82]
“Para :Our constitution guarantees the right to form
associations, not for gregarious pleasure, but to fight
effectively for the redressal of grievances. Our
constitution is sensitive to workers rights. English
history, political theory and life style being different from
Indian conditions where the Father of the Nation
organised boycotts and mass satyagrahas we cannot
incorporate English conditions without any adaptation
into Indian Law.”
1.9 Because a detailed discussion had taken place on the Foreign
Contribution (Regulation) Bill, 2006 before the Committee
where several eminent persons, national political parties,
NGOs, Planning Commission etc. had expressed their views
and reservations against several provisions in the Bill. The
Planning Commission had also expressed its view in view of its
National Policy on Voluntary Sector, 2007. In the said policy
the contributions made by the Voluntary Sector was
considered and they were allowed to mobilize necessary
financial resources from India and abroad to share
responsibility with the Government. None of these suggestions
or contributions were incorporated in the Act of 2010 or the
Rules of 2011.
1.10 Because there was a good debate in the Rajya Sabha on
several provisions of the Act of 2010. The justifications which
were given by the Government in order to sustain the validity
of the provisions themselves show that serious lacunae
existed in the legal provisions, which in submission of the
Petitioner makes them vulnerable to challenge. The
explanation which was given in the Rajya Sabha that the
vagueness which exist in the provisions will be explained in
the rules, has not been fulfilled as the Rules of 2011 are as
vague as the main Act of 2010.
1.11 Because there is vast difference between the preamble of the
Foreign Contribution (Regulation) Act, 1976 (Act of 1976) and
the preamble of the Act of 2010. That itself demonstrates that
through the Act of 2010 the constitutional protections have
been diluted and the present Act of 2010 attempts to achieve
that which is not permissible under the Constitution.
Preamble of Act of 1976
Preamble of Act of 2010
An Act to regulate the acceptance and utilization of foreign contribution or foreign hospitality by certain persons or associations, with a view to ensuring that parliamentary institutions, political associations and academic and other voluntary organisations as well as individuals working in the important areas of national life may function in a manner consistent with the values of a sovereign democratic republic, and for matters connected therewith or incidental thereto.
An Act to consolidate the law to regulate the acceptance and utilisation of foreign contribution or foreign hospitality by certain individuals or associations or companies and to prohibit acceptance and utilization of foreign contribution or foreign hospitality for any activities detrimental to the national interest and for matters connected therewith or incidental thereto.
1.12 Because the consequences of withdrawal of foreign
contribution registration on an NGO/civil society is very
serious. The civil and evil consequences of cancellation of
foreign contribution registration could be that not only persons
who are employed with the NGO or civil society will lose their
employment but it will have an adverse effect on the activities
done by the organisation namely, those working for upliftment
of poor, farmers, fighting against discrimination of women, for
protection of environment and for establishing the democratic
rights of the people etc.
PRAYER
2. The petitioner, therefore, prays that in the facts and
circumstances of the present case this Hon’ble Court may be
to:
(1) Issue a writ of mandamus/certiorari or a writ or
declaration of like nature to declare Section 5(1) & 5(4)
of the Foreign Contribution (Regulation) Act, 2010 and
Rules 3(i), 3(v) & 3(vi) of the Foreign Contribution
(Regulation) Rules, 2011 as being violative of Articles 14,
19(1)(a), 19(1)(c) and 21 of the Constitution.
(2) Pass such other order(s) which this Hon’ble Court may
deem fit and proper in the facts and circumstances of the
case.
FOR THIS ACT OF KINDNESS THE PETITIONER/APPLICANT HEREIN
AS IN DUTY BOUND SHALL EVER PRAY.
Drawn and Filed by
SETTLED BY: [AAGNEY SAIL]
SANJAY PARIKH, ADVOCATE ADVOCATE FOR THE PETITIONER
#102, New Lawyers Chambers,
M.C.Setalvad Block, Supreme Court of India,
Bhagwan Das Road, New Delhi - 110001
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL WRIT JURISDICTION)
Civil W.P No. _____ of 2011
(PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:-
Indian Social Action Forum (INSAF) …PETITIONER
VERSUS
Union of India …RESPONDENT
AFFIDAVIT
I Chitranjan Singh, S/o late Shri Bahadur Singh, aged about 50
years, R/o A-124/6, Katwaria Sarai, New Delhi – 110016 do hereby
solemnly affirm and state as under: -
1. I say that I am the General Secretary of the Petitioner in
the above Writ Petition. I say that I am aware of the facts
and circumstances of the case and I am competent to
swear this Affidavit.
2. I say that the contents of the Writ Petition are true and
correct to my knowledge and information.
3. I say that the annexures are true and correct copies of
their respective originals.
DEPONENT
VERIFICATION:
Verified on this 4th day of August, 2011 that the contents of paras 1
to 3 of the above affidavit are true and correct and nothing material
has been concealed therefrom.
Verified at New Delhi on this the 4th day of August, 2011.
DEPONENT
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL WRIT JURISDICTION)
Civil W.P No. 5793 of 2011
(PUBLIC INTEREST LITIGATION)
IN THE MATTER OF :-
Indian Social Action Forum (INSAF) …PETITIONER
VERSUS
Union of India
..RESPONDENT
WRITTEN SUBMISSIONS BY SANJAY PARIKH, ADVOCATE ON BEHALF OF THE PETITIONER
1.1 The Foreign Contribution (Regulation) Act, 1976 (hereafter
referred to as ‘1976 Act’) provided for foreign contribution to
be received by an organisation of ‘political nature not being a
political party’ for which prior permission of the Central
Government was required. The preamble - of the 1976 Act
also provided foreign contribution for associations,
organization and individuals working in the important areas of
national life so that they “may function in a manner consistent
with the values of a sovereign democratic republic, and for
matters connected therewith or incidental thereto .”
(Emphasis supplied)
1.2 However, the Foreign Contribution (Regulation) Act, 2010
(hereafter referred to as ‘2010 Act’) prohibits completely
foreign contribution to an organisation of ‘political nature not
being a political party’ vide Section 3(f) of the 2010 Act. Even
the preamble of the 2010 Act has dropped the preamble of
1976 Act, of providing foreign contribution to organisations
working consistent with the values of sovereign, democratic
and republic. The preamble is in negative form and denies
foreign contribution “ for any activities detrimental to the
national interest and for matters connected therewith or
incidental thereto ” . (Emphasis supplied).
1.3 Non-governmental organisations (NGOs) function in various
fields like environment, human rights, gender discrimination
as well as issues concerning children, farmers, students etc. In
all these activities empowerment and creation of awareness
about rights is involved. The process of empowerment of
people ultimately leads to realization of their human and
constitutional rights, namely, social, political, economic, social
and cultural rights, among others.
1.4 Organisations working against discrimination of women and
for their empowerment may will lead to participation of these
women in local self-governance, gram panchayat and
advocacy as that may be thought as one of the ways to end
discrimination. Similarly, an organisation working for the
farmers’ rights and against mindless acquisition of their lands,
may oppose the government policy on acquisition. This may
be taken as a political action against the Government. An
organisation working for the workers’ rights may oppose the
liberalization policy of the government. This may be taken as
a view against the national interest. NGOs working for the
environment may advocate against the inappropriate
industrialization policy of the government leading to the
destruction of the environmental wealth. This may be taken
as an activity against development and, therefore, branded as
a political action against the political setup. In all these civil
society struggles, the organisations will be invariables
opposing the policy of the government or its actions which in
turn is influenced by the political regime in power. NGOs
protesting peacefully in support of their cause may suffer
arrest and put in jails by the government branding their
actions as being political.
1.5 The process of empowerment of people ultimately leads to
realization of their constitutional and human rights. Political
empowerment of people is necessary so that they realize their
political duties which ultimately sub serves the purpose of
vibrant democracy. This is quite different from politics which
is aligned with the political parties and their ideologies. One
can be political but still not aligned to any political party. He
may convey ideas on how the State should be run on certain
political principles and what is most suitable within the
parameters of the Constitution, for example, a
person/organisation following Gandhi ideology may talk of
gram swaraj and that the present politics is not permitting the
achievement of the Constitutional goals as envisioned by the
Father of the Nation. Can it be said that the activities of this
organisation/persons are of political nature?
1.6 As a matter of fact, the Planning Commission drafted
“National Policy on the Voluntary Sector, 2007” which inter-
alia, provided for encouraging, enabling and empowering the
voluntary sector so that it can contribute to the social, cultural
and economic advancement of the people of India. The said
document is enclosed at pages 90 to 102 of the writ petition.
This document, inter-alia, says :
“1.2 The voluntary sector has contributed significantly to finding innovative solutions to poverty, deprivation, discrimination and exclusion, through means such as awareness raising, social mobilization, service delivery, training, research, and advocacy. The voluntary sector has been serving as an effective non-political link between the people and the Government. This policy recognizes the important role that the voluntary sector has to play in various areas and affirms the growing need for collaboration with the voluntary sector by Government, as well as by the private sector, at the local, provincial and national levels. ”
3.1.2 To enable VOs to legitimately mobilize necessary financial resources from India and abroad ;
4.1 The independence of VOs allows them to explore alternative paradigms of development to challenge social, economic and political forces that may work against public interest and to find new ways to combat poverty, deprivation and other social problems. It is therefore crucial that all laws, policies, rules and regulations relating to VOs categorically safeguard their autonomy, while simultaneously ensuring their accountability.”
( Emphases supplied)
1.7 In view of the above, the definition of ‘political nature’,
‘political objective’, ‘political ideology’ are different from the
normal political actions of political parties. NGOs play a
complementary/supplementary part in doing what the State
should ideally do. The only laudable objective of both is to
empower people as against poverty, illiteracy, homelessness,
discrimination etc. and in the process, if need be, to counter
Government policies, laws, political decisions etc.
1.8 The consequences of withdrawal of foreign contribution
registration on an NGO/civil society is very serious. The civil
and evil consequences of cancellation of foreign contribution
registration could be that not only persons who are employed
with the NGO or civil society will lose their employment but it
will have an adverse effect on the activities done by the
organisation namely, those working for upliftment of poor,
farmers, fighting against discrimination of women, for
protection of environment and for establishing the democratic
rights of the people etc.
1.9 The impugned provisions give the Central Government a
blanket power to pick and choose from NGOs/CSOs anyone
whom they don’t want to function due to their strong
opposition, which they demonstrate through constitutionally
permissible methods. This is where the entire problem lies.
The Government’s power to pick and choose, discriminate, act
arbitrarily by abusing powers given under the Act, is quite
obvious.
2. Why Section 5 of the 2010 Act is unconstitutional?
Section 5 of the 2010 Act states that,
“5. Procedure to notify an organisation of a political
nature.
(1) Th e Centra l Governmen t ma y , havin g regar d t o th e activitie s
o f th e o r ganisation o r th e ideolog y propagate d b y th e organi -
satio n o r th e programm e o f th e organisatio n o r the associa -
tio n o f th e o r ganisation s wit h th e activitie s o f an y politica l
part y , by an order published in the Official Gazette, specify
such organisation as an organisation of a political nature not
being a political party, referred to in clause (f) of sub-section
(1) of section 3:
Provided that the Central Government may, by rules made
by it, fram e th e guidelines specifyin g th e groun d o r ground s
o n whic h a n organisatio n shal l b e specifie d a s an organisa -
tio n o f a politica l nature .
(2) Before making an order under sub-section (1), the Central
Government shall give the organisation in respect of whom
the order is proposed to be made, a notice in writing inform-
ing it of the ground or grounds, on which it is proposed to be
specified as an organisation of political nature under that
sub-section:
(3) The organisation to whom a notice has been served under
sub-section (2), may, within a period of thirty days from the
date of the notice, make a representation to the Central Gov-
ernment 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) t o
an y authorit y t o repor t o n suc h representation.
(5) The Central Government ma y , afte r considerin g th e represen -
tatio n an d th e repor t of th e authorit y referre d t o i n sub-sec -
tio n ( 4 ) , specify such organisation as an organisation of a po-
litical nature not being a political party and make an order un-
der sub-section (1) accordingly.
(6) Every order under sub-section (1) shall be made within a peri-
od of one hundred and twenty days from the date of issue of
notice under sub-section (2):
Provided that in case no order is made within the said peri-
od of one hundred and twenty days, the Central Government
shall, after recording the reasons therefore, make an order
under sub-section (1) within a period of sixty days from the
expiry of the said period of one hundred and twenty days.
(Emphases
supplied)
2.1 The petitioner submits that the terms used in Section 5 (1),
namely, ‘activities’, ‘ideology’ and ‘programme’ are very vast;
they have not been defined either in the Act or in the Rules.
Such vague expressions are therefore, amenable to abuse
resulting in arbitrary and illegal action. Though Proviso to
Section 5 (1) says that by framing guidelines and specifying
ground/grounds, an organisation shall be specified as an
organisation of a political nature, the Rules do not actually
lay-down any guidelines. The ground / grounds provided in the
Rules are exhaustive in nature but they do not cover all the
situations envisaged by the terms, namely, activities, ideology
and programme. In certain areas, the Rules travel beyond the
main Section 5. It is to be further noted that the term
‘authority’ as mentioned in Section 5 (4) has not been defined
anywhere in the Act or Rules. The discretion has been given to
the Central Government to either forward the representation
to such an authority or not. From Section 5 (5) it is further
clear that the Central Government may consider either the
representation alone or representation along with the report
of the Authority. The discretion given to the Central
Government under Section 5 (4) is without any guidelines;
there is no reason or rationale as to the situations where the
representation will be forwarded to an authority and where it
will not. The nature and character of the authority has not
been defined. It is not clear whether the authority will be
independent of the Central Government. Therefore, Section 5
(4) as far as exercise of discretion by the Central Government
is concerned and as far as the uncertainty about the authority
is concerned, it is violative of Article 14 of the Constitution.
2.2 The petitioner relies on the debates in Parliament, as that is
one of the methods of ascertaining intention of the Parliament
for the purpose of interpretation and understanding of the
legal provisions.
The Foreign Contribution (Regulation) Bill, 2010 [Bill No. CXII-
C of 2006] (hereafter ‘Bill of 2010’) is passed by Rajya Sabha
on 19.08.2010. In the Rajya Sabha, the following important
debates took place:-
Shri M. Rama Jois (Rajya Sabha member from Karnataka)
whose book ‘Legal and Constitutional History of India’ is
prescribed by the Bar Council of India for the law degree,
made the following comments :
“ … Now, I will give an example. What about trade unions?
There are a number of trade unions which are also
registered organisations and about most of the trade
unions we know to which political parties they are affiliated
or belong to. If this sweeping power is given to the Central
Government, the Central Government may say that a trade
union is affiliated to a particular party, therefore, prevent
them from getting foreign contribution. Therefore, my
objection is that this 'political nature' is a very dangerous,
wide and very vague expressions. The Supreme Court has
held if a provision is capable of both use and abuse, then,
it is violative of article 14 of the Constitution. Right from
1958 the Supreme Court in Ramkrishan Dalmia's case has
said that any provision made by the legislation cannot be
such that it is both capable of use as well as abuse. This is
what has happened. Therefore, which is an organisation of
a political nature is left to the sweet will of the Central
Government. Section 5 provides that before making an
order under sub-section (I), the Central Government shall
give the organisation in respect of whom the order is
proposed to be made, a notice in writing informing it of the
ground or grounds, on which it is proposed to be specified
as an organisation of political nature. So, the Government
can issue a notice. It can say, 'your organisation is
considered, in our opinion, an organisation of political
nature, and therefore, we want to prohibit you from getting
foreign contribution.' What do you say, Sir? Then, there is
another interesting provision in Clause 5(2), which says,
'provided the Central Government may by rule specify' etc.
Sir, 5(3) says that the organisation to whom a notice has
been served under sub-section (2), may, within a period of
thirty days from the date of the notice, make a
representation to the Central Government giving reasons
for not specifying such organisation as an organisation
under sub-section (I). The meaning is that the Central
Government will issue notice stating reason to declare an
association as of a political nature. Then they have given
the right of representation. Then what is going to be done
with that representation you see, provided that the Central
Government may entertain. So, the time limit is there,
more time is also given. Sir, subclause 4 is most important.
It says that 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. What is that authority? First of all, it is left
to the decision of the Central Government to refer or not to
refer. Now, even if it decides to refer the representation
given by a particular party or association, then, it can refer
to some authority. Which is that authority, it is not
specified. Then the Central Government may, after
considering the representation and the report of the
authority, etc. So, the Central Government may send it to
some authority and that whatever opinion is given by that
authority is taken into consideration and the Central
Government will take a decision. My submission is you are
doing it without specifying the authority, the status of the
authority to which the representation is to be referred. My
first objection is to power to declare an association of a
political nature is itself dangerous. It is totally going to
destroy the Fundamental Rights under article 19 (1) (C) of
the Constitution. Even trade union activities can be barred
from getting foreign contribution by exercise of this power.
As far as this authority is concerned, the word authority is
also extremely vague. It can be some authority of the
choice of the Government. They can take the report of that
authority and pass the final order. ”(emphasis supplied)
In response to the queries raised by members including Shri
M. Rama Jois and others, Shri P. Chidambaram, Home Minister
said that,
“Sir, many of the things which the hon. Members said have to
be dealt with in the rules. They may appear vague, but any
law, Mr. Rama Jois knows, if you read it without the rules will
appeal to be vague. But, many of the things have to be pro -
vided for in the rules.
Wherever it is necessary, wherever it becomes excessive del-
egation, we have provided it here. But most of the things
have to be done in the rules and guidelines and that is why I
think any law which is drafted will appear to vest a large
amount of discretion. But the rule making power is intended
to control that discretion or power. Many of these will indeed
be dealt with under the rules.
Now, Mr. Rama Jois mentioned clause 5. Clause 5 is already
there in Section 5 of the present Act. You mentioned Clause
9. Clause 9 is already Section 10 in the present Act. These
are not new provisions. These are the provisions which have
been repeated because these are wholesome provisions that
have stood the test of law. 'Political nature', in fact, we have
said that the present law is rather vague. The new law says
on political nature we will lay down guidelines, we will frame
rules, we will issue a show cause notice, and we will give the
reasons why an organisation is being called an organisation
of a political nature. We will get their reply, and then we will
pass an order either of placing them in the category of orga-
nizations of a political nature, and publish that notification. If
it is abused, if it is unreasonable, they know how to challenge
it in the court of law. In fact, we are making it more transpar -
ent, we are making it more rule based and more reason
based.” (emphases supplied)
3. The Foreign Contribution (Regulation) Rules, 2011 (hereafter
‘2011 Rules’) have provided for declaration of an organization
to be of a political nature though it is not a political party.
Rule 3 states that:
“3. Guidelines for declaration of an organization to be of a
political nature, not being a political party.- The central
Government may specify any organization as organization of
political nature on one or more of the following grounds:
(i) Organization having avowed political objectives in its
Memorandum of Association or bylaws :
(ii) any Trade Union whose objectives include activities for
promoting political goals:
(iii) any voluntary action group with objectives of a
political nature or which participates in political
activities;
(iv) front or mass organizations like Students Unions,
Workers’ Unions, Youth Forums and Women’s wing of
a political party;
(v) organization of farmers, workers, students, youth
based on caste, community, religion, language or
otherwise, which is not directly aligned to any political
party, but whose objectives, as stated in the
Memorandum of Association or activities gathered
through other material evidence, include steps
towards advancement of political interests of such
groups;
(vi) any organization, by whatever name called, which
habitually engages itself in or employs common
methods of political action like ‘ bandh ’ or ‘ hartal ’ ,
‘ rasta roko ’ , ‘ rail roko ’ or jail bharo ’ in support of public
causes.”(emphases supplied)
4. The petitioner is challenging Rule 3 (i), (v) & (vi) of the said
Rules as being unconstitutional and ultra vires the Act itself.
The challenges to Rule 3 are based on the following
reasoning:
4.1 These guidelines/grounds are extremely wide, without any
checks and balances and give arbitrary and wide discretion,
which render the said Rule being subjected to misuse and
abuse. These guidelines in the Rules suffer both from
unreasonableness, arbitrariness as well as for not creating a
discernible classification between the political activities and
other social or public activities. They seek to interfere with the
activities of the organisation in important areas of national life
which is impermissible under this Constitution. The Rules 3(i),
3(v) & 3 (vi) are therefore, contrary to the object of the Act of
2010 as well as ultra-vires Articles 14, 19(1)(a), 19(1)(c) and
21 of the Constitution.
Re : RULE 3 (i)
4.2 Under Rule 3(i) of Rules of 2011, the Central Government may
declare on organisation to be of a political nature in case the
organization, in its memorandum of association or byelaws,
has avowed ‘political objective’. The Rule nowhere defines
what is meant by ‘political objective’. In a democracy
governed by the Rule of Law and having a written
Constitution, it is permissible that an organisation or an
individual protests or insists on the government keeping up its
political objective consistent with the Constitution and
Directive Principles. The term ‘political objective’ includes the
governance as well as policies of the Government. Therefore,
if in the memorandum or byelaws of an organization, the
avowed objective is to oppose government policies which
violate the Constitution and Directive Principles, it may be
accused of having a political objective. The said provision is
thus totally unguided, unchecked and confers arbitrary and
unreasonable powers on the Central Government and
therefore, violative of the Article 14, 19 (1) (a), and 19 (1) (c)
of the Constitution.
Re: RULE 3(v)
4.3 Under Rule 3(v) of the Rules of 2011, an organization of
farmers, workers, students, youth based on caste, community,
religion, language or otherwise which is not directly aligned to
any Political party, can be categorized as a political
organization if its objective include steps towards
advancement of political interest of such groups; or activities
gathered through material evidence include steps towards
advancement of political interest of such group.
It is thus clear that if an organization of farmers indulges in an
activity for the purpose of empowering itself for realization of
its human rights/ Fundamental Rights, which may include
political empowerment as well, it may be put under the
category of “organization of a political nature.” The Act of
2010 or the Rules of 2011 do not define what is the meaning
and scope of the expression “political interest.” Under the
International Covenant on Civil and Political Rights, 1967
(hereafter referred to as ‘ICCPR’) of which India is a signatory,
the civil and political rights are treated as part of human
rights. Under the provisions of the Protection of Human Rights
Act, 1993 (hereafter referred to as ‘Act of 1993). ‘Human
Rights’ have been defined under Section 2 (d), which means
the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the
International Covenants. ‘International Covenants’ is also
defined under Section 2(f) which mean covenant on Civil and
Political Rights (ICCPR) & International Covenants on
Economic Social and Cultural Rights (ICESCR). Therefore, what
has been provided as ‘political right’ in the ICCPR has been
taken to be part of Human Rights. The aim and object of the
Act of 1993 is to promote, protect and implement the civil and
political rights of an individual/organization. It is, therefore,
not understood on what basis for e.g. the farmers’
organization will be termed as political organization to deny
foreign contribution. The denial of foreign contribution will, in
fact, result in infringement of activities of the organization
which are a necessary and inalienable part of democracy and
Rule of Law. Such an action will not be consistent with the
values of a Sovereign democratic republic which recognizes
the right of protest. The said provision, therefore, is violative
of not only Article 14 but also 19(1)(a) & 19(1)(c) of the
Constitution. The power which has been given in the Rules of
2011, therefore, is un-canalized, arbitrary and does not make
a difference between a ‘political activity’ and advancement of
political rights of an organization.
Re: RULE 3(vi)
4.4 Rule 3(vi) of the Rules of 2011, is also unconstitutional for the
reason that if an organization indulges in ‘bandh’, ‘hartal’,
‘rasta roko’, ‘rail roko’, or ‘jail bharo’, which actions are in
support of public causes, it will be termed as “political action”
and such organization will be declared as a political
organization. The term “habitually” is prone to gross misuse
and abuse. In a democracy, some of these actions are
accepted methods of expressing the public grievances. They
are the only tools in the hands of people to show their
disagreement or dissatisfaction with the functioning of the
Government. The said provision also suffers from the vice of
arbitrariness and unreasonableness because by using these
arbitrary guidelines any organization which has indulged in
‘bandh’, ‘hartal’ ‘jail bharo’ etc. will be termed as a political
organization and will be denied foreign contribution. By this
action of the Central Government, the right of a
Citizen/Organization of its democratic right of protest will be
seriously affected. The said provision, therefore, is violative of
Articles 14, 19(1) (a) and 19(1)(c) of the Constitution.
4.5 The Petitioner relies on the following judgments to point-out
that the citizens have a right to protest & express their views
subject to restrictions in the constitution.
Himmat Lal K Shah Vs Commissioner of Police
Ahmedabad [(1973) 1 SCC 227] that,
“Para 31 : It seems to us that it follows from the above
discussion that in India a citizen had, before the
Constitution, a right to hold meetings on public streets
subject to the control of the appropriate authority
regarding the time and place of the meeting and subject
to considerations of public order.
Para 35 : If the right to hold public meetings flows from
Art. 19 (1) (b and Art. 19 (1) (d) it is obvious that the
State cannot impose unreasonable restrictions.
Para 70 : Public meeting in open spaces and public
streets forms part of the tradition of our national life. In
the pre- Independence days such meetings have been
held in open spaces and public streets and the people
have come to regard it as a part of their privileges and
immunities.”
Further, it has been held in Rohtas Industries Ltd Vs
Rohtas Industrial Staff Union [(1976) 2 SCC 82]
“Para 20 :Our constitution guarantees the right to form
associations, not for gregarious pleasure, but to fight
effectively for the redressal of grievances. Our
constitution is sensitive to workers rights. English
history, political theory and life style being different
from Indian conditions where the Father of the Nation
organised boycotts and mass satyagrahas we cannot
incorporate English conditions without any adaptation
into Indian Law.”
4.6 The rights conferred under the ICCPR, among other
covenants, have been accepted as a part of municipal law by
the Supreme Court as they enhance the content of Article 21
of the Constitution. [vide: PUCL Vs UOI and Ors 1997 (3) SCC
433 and Kapila Hingorani Vs. State of Bihar 2003 (6) SCC 1].
Under the Protection of Human Rights Act, 1993 the
provisions of ICCPR have, in fact, been treated as part of
Article 21 of the Constitution. By denying the political
advancement or political expression, an organization’s human
rights which are part of Article 21, have been curtailed.
Similarly, by categorizing certain actions as being political for
the purpose of denying them certain benefits under foreign
contribution, in fact, really amounts to suppression of their
human rights as well as freedom of expression under Article
19(1)(a) of the Constitution. These rules are therefore,
unconstitutional.
5. Sec. 5 gives unfettered discretion which is further enhanced
by the guidelines under Rule 3. This unfettered, undefined
and vague discretion is violative of Article 14 of the
Constitution. Further, in addition, impugned Guidelines
provided under Rule 3 are arbitrary, unjust, unreasonable and
violative of Article 14 of the Constitution. Art. 19(1) (a) (b) & (
c ) is violated as the impugned provisions travel beyond the
reasonable restrictions provided under Art. 19 (2) (3) & (4).
(i) State of W. B. vs. Anwar Ali Sarkar : AIR 1952 SC 75
at 86 – Para 38 (Mahajan J.)
at 90-92 – Para 49 and 50 (Mukherjea J.)
(ii) Shri Ramkrishna Dalmiya vs. Justice Tendulkar
AIR 1958 SC 538 at 548 (Para 12 (iii)
(iii) K.T. Moopil Nair vs. State of Kerala
AIR 1961 SC 552 at 558 (Para 8)
(iv) Maneka Gandhi vs. Union of India 1978 (1) SCC 248.
(v) Smt. Damyanti Naranga vs. The Union of India And Ors.
1971 (1) SCC 678
(vi) Kameshwar Prasad and Ors . Vs. State of Bihar and Anr ,
AIR 1962 SC 1166 at 1170 (Para 13)
FILED ON: 17.8.2011