‘Receiving foreign donation not an absolute right’: SC clears amendments to FCRA

The Supreme Court on Friday cleared the amendments made by the Centre in 2020 to the Foreign Contribution (Regulation) Act, 2010, saying they were “essentially conceived in the interests of public order and also general public as the intent is to prevent misuse and misutilisation of foreign contribution coming from foreign sources to safeguard the values of a sovereign democratic republic”.

The judgment came on a batch of three writ petitions – two of which challenged the 2020 amendments while the third one prayed for stricter enforcement of the amended and other provisions of the Act.

The bench of Justices A M Khanwilkar, Dinesh Maheswari and C T Ravikumar said “receiving foreign donation cannot be an absolute or even a vested right” and added that “we say so because the theory of possibility of national polity being influenced by foreign contribution is globally recognised”.

“For, foreign contribution can have material impact in the matter of socio-economic structure and polity of the country. The foreign aid can create presence of a foreign contributor and influence the policies of the country. It may tend to influence or impose political ideology,” said the court.

It added that “such being the expanse of the effect of foreign contribution coupled with the tenet of constitutional morality of the nation, the presence/inflow of foreign contribution in the country ought to be at the minimum level, if not completely eschewed. The influence may manifest in different ways, including in destabilising the social order within the country”.

The bench said “we find force in the argument that it had become necessary for the Parliament to step in and provide a stringent regime for effectively regulating the inflow and utilisation of foreign contribution”.

“…we declare that the amended provisions vide the 2020 Act, namely, Sections 7, 12(1A), 12A and 17 of the 2010 Act are intra vires the Constitution and the Principal Act,” the court ruled.

The petitioners had also challenged the validity of Section 12A, which made it mandatory to produce Aadhaar card details of the office bearers/functionaries/directors of the societies/trusts as identification document for the purpose of seeking registration.

On this the court said, “as regards Section 12A, we have read down the said provision and construed it as permitting the key functionaries/office bearers of the applicant (associations/NGOs) who are Indian nationals, to produce Indian Passport for the purpose of their identification. That shall be regarded as substantial compliance of the mandate in Section 12A concerning identification”.

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