The Chronology of Subterfuge on Amending the FCRA

Congress leader Abhishek Singhvi admitted on live TV that the repealed FCRA 1976 was amended retrospectively to save BJP and Congress from prosecution.

The current saga of the FCRA (Foreign Contributions (Regulation) Act), the latest episode of which happened on April 11, 2018, started in January 2013. It is revealing to look at developments in a chronological order.

January 2013: The Association for Democratic Reforms (www.adrindia.org) and E.A.S. Sarma, former Secretary to the government of India file a petition in public interest (PIL) in the Delhi high court claiming that the Bharatiya Janata Party (BJP) and the Indian National Congress (INC) had accepted donations from foreign sources in violation of section 4 of the FCRA 1976, which specifically prohibited political parties from accepting donations of money from foreign sources.

March 28, 2014: The Delhi high court pronounces its judgment after holding 10 hearings, (a) declaring the BJP and the Congress guilty of having violated the FCRA, and (2) directing the government of India (GoI) and the Election Commission of India (ECI) to take action against the two political parties “as contemplated by law…within a period of six months from date of receipt of certified copy of the present decision.”

June 26, 2014: Congress files a special leave petition (SLP) in the Supreme Court against the Delhi High Court decision of March 28, 2014.

August 26, 2014: BJP files a special leave petition (SLP) in the Supreme Court against the Delhi high court decision of March 28, 2014. No action is taken against the two parties by the GoI in the intervening time. Hearings in the Supreme Court continue.

December 21, 2015:  The Economic Timesreports “Government’s FCRA tweak plan to benefit BJP, Congress.”

December 28, 2015: Government’s plan to amend the FCRA highlighted.

February 29, 2016:Finance Bill 2016 presented in Lok Sabha. Clause 233 of the Finance Bill contains proposal to change the definition of ‘foreign source’ in the FCRA. The revised definition would legitimise the foreign source donations for which BJP and Congress were held guilty of violating the FCRA by the Delhi high court in March 2013. The Wire breaks the story of the amendment on April 2, 2016.

May 14, 2016: Finance Bill 2016 receives Presidential Assent and becomes law.

May 19, 2016: The true intention and impact of the amendment to the FCRA highlighted

November 22, 2016: SLPs of BJP and Congress come up for hearing in the Supreme Court. Their lawyers claim that since the FCRA has been amended to change the definition of ‘foreign’ source, the case is infructuous. It is pointed out that the FCRA that has been amended is FCRA enacted in 2010 whereas the guilt of BJP and Congress is for violating FCRA 1976, as specifically stated in para 2 of the Delhi high court judgment of March 28, 2014. Therefore, amendment of FCRA 2010 does not have any effect on the Delhi high court judgment of March 28, 2014. Lawyers for BJP and Congress seek an adjournment to seek instructions from their clients. Hearing adjourned by a week to November 29, 2016.

November 29, 2016: Lawyers for BJP and Congress seek permission to “withdraw” their appeal. Supreme Court order records “Dismissed as withdrawn.”

March 21, 2017: ADR and E.A.S. Sarma file contempt of court petition in the Delhi high court against the Union of India for not having implemented Delhi HC’s orders of March 28, 2014, till date even though the orders were to be implemented within six months of the date of judgment.

Hearings in the contempt petition continue with the Union of India’s lawyers seeking adjournments.

February 01, 2018:Finance Bill 2018 presented in Lok Sabha. Clause 217 of the Bill says “217. In the Finance Act, 2016, in section 236, in the opening paragraph, for the words, figures and letters “the 26th September, 2010”, the words, figures and letters “the 5th August, 1976” shall be substituted.” What this means, in simple terms, is that while the Finance Bill 2016 amended the FCRA 2010, the Finance Bill 2018 amends the FCRA 1976.

The catch here is that while Parliament was well within its powers to amend FCRA 2010 since it is a law that is currently in force, and in this sense, is a ‘live’ law; amending the FCRA 1976 is an impossibility because it is now a ‘dead’ law. It ceased to exist on September 26, 2010 when section 54(1) of the FCRA 2010 said, “The Foreign Contribution (Regulation) Act, 1976 (hereafter referred to as the repealed Act) is hereby repealed.” As has been written this “is akin to trying to conduct a heart or liver transplant on a person who has been dead for seven years.”

March 14, 2018: Finance Bill 2018 passed by Lok Sabha.

March 29, 2018: Finance Bill 2018 receives Presidential assent and becomes law.

It has been pointed out that these repeated attempts at amending the FCRA had, and have, only one objective: To save the BJP and Congress from being prosecuted for the violations of FCRA, as determined by the Delhi high court in its judgment of March 28, 2014.
This brings us to the latest episode in this saga. On April 11, 2018, in discussion titled “Swachh Political Funding: Is it possible?” a prominent leader and spokesperson of the Congress, Abhishek Manu Singhvi, was asked about these repeated attempts to get the BJP and the Congress off the hook. The question and Singhvi’s response can be seen in this link.

The anchor of the discussion asked, “I am obviously talking about the amendments that we have actually seen to the FCRA which is something, it’s a story that’s almost amusing, were it not for the fact that it is so serious that after you and the BJP were pulled up by the Delhi high court for violations of receiving foreign funds. First, the Act is amended, going back to September 2010 and then when the Supreme Court says that the court was referring to the 1976 Act, then the Finance Bill goes all the way back to 1976 to amend the Act. Now isn’t this a case of all political parties, including you, being complicit in basically using Parliament going back to 1976, amending the law to protect yourself from being caught out for an illegality.”

“Yes, it is true, that more than the two mainstream parties were involved and therefore an amendment was used,” the Congress leader said. Credit: Abhishek Singhvi’s website

To which Singhvi’s response was, “I would be less than candid if I did not partly agree with you, though not with your strong words. But you must realise one thing, and this is a bit of legalese here which you must appreciate. Yes, it is true, that more than the two mainstream parties were involved and therefore an amendment was used. But, you know, it is not as bad as you make it sound. It was done for a case-specific aberration. I don’t think the intention was to violate the Act but since technically the view was the Act stood violated, both the parties agreed that, they should amend the law. And let me tell you what happened. It is a case-specific case of Vedanta or Sterlite group. They made an open donation, but there was a particular clause which read in a particular way by interpretation, was assumed to be compliant but was found by the courts to be non-compliant. There was nothing hidden about it. It is just that they had a set of foreign shareholders and foreign elements, which would have not made it a compliant thing. Now the only way to get about it was either to have prosecutions for both the parties. Remember it is not hidden, it is not surreptitious, not intended to violate in that sense. So to get around that prosecution, I think this was made, I wish it could have been avoided. Therefore, the going back to 1976 is not in the blanket sense you mean it, that there were millions of donations from millions of different donors. Remember the funny part of this whole thing is, it is for one donor, one donor, therefore, though you are right in theory, it is not as bad as it sounds. And I think it should be avoided in the future. It is a bona fide donation, accepted by the donee bona fide, made by the donor bona fide, but found to be in violation of the Act, which is rectified and therefore retrospective” (Emphasis added during transcription).

It is now for the readers to decide what to make out of the expression “both the parties agreed that, they should amend the law.

The above narrative should not leave any doubt whatsoever in anyone’s mind that all political parties believe that the law of the land does not apply to them. They seem to be convinced that they are above the law.

This complete misunderstanding of democracy in the minds of political parties is the biggest danger to democracy in the country.
The onus of letting political parties know in no uncertain terms that in a democracy NO ONE IS ABOVE THE LAW rests on “We, the People.”

ADR and E.A.S. Sarma are in the process of filing a PIL challenging the amendment of a repealed law which is an obvious fallacy.

Jagdeep S. Chhokar is a former professor, dean and director-in-charge of IIM, Ahmedabad. Views are personal.