The Delhi High Court on Friday (October 9) asked the central government to respond on a PIL seeking directions for a tribunal or committee independent of the political executive for enforcement of the Foreign Contribution Regulation Act (FCRA), in order to avoid its misuse. A division bench of Chief Justice G. Rohini and Justice Jayant Nath asked Additional Solicitor General Sanjay Jain to take instructions from the government on the issue and posted it for November 13.
The plea filed by Association of Democratic Reforms sought that the FCRA be kept out of the reach of political masters, who could exert undue influence on the executive for favourable action.
Legislators and politicians who are covered under FCRA are also the masters of bureaucratic executive who are tasked with enforcement responsibility and as per section 40 of the Act, government permission is prerequisite for any prosecution, and thus political executive get to decide their own cases by having the privilege to decide if any prosecutions could be initiated against them, said the plea.
“Executive is tasked with effective enforcement even against the political parties, politicians, legislators, quasi-political institutions with strong political affinity and NGOs. However, legislators being the political masters of 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,” said the PIL.
The plea also said that despite the high court judgement last year where it held the BJP and Congress prima facie guilty of violation of provisions of FCRA, the government has not taken any action which demonstrate the need for an independent body to administer and enforce the FCRA.
“Hence it would be appropriate to have an independent body rather than executive supervision and control of FCRA matters. This would not only bring uniformity, continuity and consistency but also keep FCRA out of the reach of political masters, who could exert undue influence on the executive for favourable interpretation and action/inaction based on convenience for obvious reasons. Justice should not only be done but also be seen to have been done.”
It added that enforcement seems to be strict on NGOs and not so convincing on legislators and politicians, so the process is not transparent and clouded with executive discretion.
“There is no progress on complaints against the political executive and legislators while too much attention is focused on NGO transactions,” the petition stated.
Since proceedings under the FCRA are strictly judicial in nature, those who administer them should have the necessary judicial training and experience and proceedings should be transparent and accessible to the public to invoke confidence and credibility, it contended.
“In several countries like US, Canada and France, there are laws that prohibit political parties and legislators from accepting foreign donations and hospitality and in those countries, there are independent, credible statutory institutions in place to oversee alleged violations of the relevant laws and enforce them through processes that are transparent,” added the petition.
