Subramonium Prasad JUDGMENT
S.C. Sharma, C.J.
1. The instant Writ Petition has been filed by the Association for Democratic Reforms ('Petitioner') seeking directions to constitute an independent tribunal 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 judicial officers, who are also prohibited from accepting foreign contributions. Due to such possibilities of misuse within the FCRA, the Petitioners have filed the instant petition seeking the establishment of an independent body to carry out the functioning of the FCRA. This according to the Petitioners would help bring consistency, uniformity, continuity in the functioning of the FCRA, and would also help keep the FCRA away from political interference.
3. Mr. Prashant Bhushan, learned Counsel appearing for the Petitioner, an NGO which has been at the forefront of electoral reforms in the country, states that the FCRA fails to meet this objective of restricting political parties from accepting foreign contribution due to the interference of the central government in its functioning. To this end, he draws the attention of this Court to Section 3(1)(e) of the FCRA, which prohibits a political party from accepting any foreign contributions. He then draws attention to Section 43 which gives the Central Government the power to specify an authority to investigate offences under the FCRA. Further, Section 46 gives the Central Government the power to give directions to any authority to execute the FCRA. Section 47 envisages the delegation of the central government's functions to any subordinate authority. Mr. Prashant Bhushan, learned Counsel appearing for the Petitioner argues the enforcement of the FCRA is clouded by government discretion and political executive influence, due to the unbridled and excessive powers accorded to the Central Government. In sum and substance, the case of the Petitioner is that the proceedings under FCRA need to be independent and insulated from any extraneous influence from the Central Government in order to ensure that it functions effectively.
4. Per contra, it has been argued by the Respondent that the Petition has been filed on the unfounded apprehension that the Central Government is likely to abuse its power under the FCRA. It is further argued that since only a miniscule number of cases are pending under the FCRA, establishing an independent tribunal or body would only be a waste of manpower of the judiciary and executive. The l........