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New Delhi: There exists no fundamental right to receive unbridled foreign contributions without any regulation, the Union government on Thursday told the Supreme Court while seeking dismissal of pleas challenging the amendments carried out in the Foreign Contribution (Regulation) Act (FCRA), 2010.
In an affidavit filed in the apex court, the government has said that the Act is a sovereignty and integrity legislation where the overriding purpose is to ensure that foreign money does not dominate public life as well as the political and social discourse in India.
This becomes even more imperative in view of the fact that some foreign powers and foreign state and non-state actors continue to take up activities that amount to interference in the internal polity of the country with ulterior designs. The restrictions on transfer aim to prevent and counter such acts of ulterior motives, it said.
The affidavit said the object of the Act is to regulate the acceptance and utilisation of foreign contribution or foreign hospitality by certain individuals or associations or companies and also to prohibit acceptance of such contribution for any activities which are detrimental to the national interest.
It further said, there exists no fundamental right to receive unbridled foreign contributions without any regulation.
It is submitted that in fact, there exists no fundamental right under which any right, legal or otherwise, can be said to include the purported right to receive foreign contributions, the government has said.
The apex court is hearing three separate petitions which have raised issues concerning the Foreign Contribution Regulation (Amendment) Act, 2020.
While two of these petitions have challenged the amendments carried out in the Act, one of them has sought stricter enforcement of the amended and other provisions of the law.
A bench headed by Justice A.M. Khanwilkar would hear the matter on October 28.
The affidavit said the government has been taking proactive efforts in facilitating the petitioner and the other NGOs to enable their smooth transition to the new FCRA regime.
It said the parliament, representing the will of the people, has enacted the Act thereby laying down a clear legislative policy of strict controls over foreign contributions for certain activities in the country.
It is submitted that there exists no right to receive any foreign contribution outside the framework designed by the parliament and implemented by the executive. It is submitted that the regime in place which enables receiving of foreign contribution envisages certain regulations and procedural preconditions and compliances for accepting foreign contributions, it said.
It is submitted that the question of the need to frame a law with regard to the present subject matter within a country is solely within the domain of Parliament elected by the people. It is submitted that the question of policy efficacy or the requirement of the law is based on factors which clearly fall outside the judicial realm, it said.
The affidavit said that foreign contributions, considering their nature and vast expanse of abuse, are a tightly regulated and controlled means and the government is well within its rights to make the changes in order to effectively implement the objects of parliament.
It is submitted that in the absence of any violation of a fundamental right, the present set of petitions, claiming a moonshine fundamental right of received unbridled foreign contributions’ are not maintainable under Article 32 and therefore, on this ground alone, the petitions deserve to be dismissed, it said, adding that these amendments are within the legislative domain of the Centre.
The government said taking advantage of the erstwhile provision of transfer, certain NGOs had adopted the transfer of foreign contribution as their principal activity.
As is detailed in the subsequent paras (in the affidavit), such large-scale transfers of foreign contribution created several operational difficulties and malpractices that threatened to defeat the very purpose of the Act. It was becoming difficult to monitor the ultimate utilisation of the foreign contribution by the transferee, it said.
The affidavit said to prevent such violations and malpractices, it was considered necessary to stop the transfer of foreign contribution to fix accountability.
It said owing to the erstwhile provision, the transfer of foreign contribution became the principal activity of several NGOs and such a trend is fraught with the possibility of foreign contribution potentially being diverted from one area of activity to another area, leading to misuse of funds.
It is further submitted that the provision of transfer under erstwhile section 7 allowed even the transferee to further transfer it to another association and that transferee could transfer it even further. This would potentially allow the endless chain of transfers and create a layered trail of money, thus making it difficult to trace the flow and utilization of foreign contributions. This creates serious vulnerability for misuse and diversion of foreign contribution, it said.
The Centre also said that the Act cannot be equated with any other general legislation and it was enacted with a clear objective to insulate the democratic polity and public institutions and individuals working in the national democratic space from the undue influence of foreign contribution or foreign hospitality received from any foreign source.