It was reported in December 2015 that a “proposed amendment to section 2 (1) (h) of FCRA, 2010, has been sent to the law and finance ministries for their comments,” which would “make funding easier for big political parties.” The report also said that “the amendment being brought into the Act seeks to allow foreign companies that are registered in India to contribute to political parties from their corporate social responsibility fund in sectors where FDI is allowed.”
That the December 2015 attempt to bail out the BJP and the Congress was the not the first was clear from a statement in the same report, “Officials said an earlier suggestion to bring in a notification describing any company registered in India as an ‘Indian company’, irrespective of its shareholding pattern, has been turned down during inter-ministerial discussions.”
Both the BJP and the Congress have been in a dilemma since March 28, 2014 ,when a Division Bench of the Delhi high court said, “For the reasons extensively highlighted in the preceding paragraphs, we have no hesitation in arriving at the view that prima-facie the acts of the respondents inter-se, as highlighted in the present petition, clearly fall foul of the ban imposed under the Foreign Contribution (Regulation) Act, 1976 as the donations accepted by the political parties from Sterlite and Sesa accrue from ‘Foreign Sources’ within the meaning of law.” It should not be hard to guess that the “respondents” were the Congress and the BJP. The Court also asked the Union of India and the Election Commission of India (ECI) to “take action as contemplated by law”, and to do that in a specified time frame, “within a period of six months from date of receipt of certified copy of the present decision.”
Since the body authorised to implement the FCRA is the Ministry of Home Affairs, the ECI wrote to the ministry to take action. A series of letters were then exchanged between the home and corporate affairs ministries. As this to and fro went on, the Congress and the BJP filed appeals in the Supreme Court on June 26 and August 26, 2014 respectively. It is important to note that the Supreme Court has not stayed the decision of the high court, and therefore both political parties are legally still guilty of having violated the FCRA. The matter remains pending in the apex court; the last date of hearing was April 1, but the matter was not taken up and the next date is yet to be fixed.
It is this that is causing a sense of urgency and desperation in government circles, which has led to the surreptitious insertion of the amendment to the FCRA as Part XIII of the Finance Bill, 2016.
Opting for recusal?
The government obviously hopes that the amendment to the FCRA will pass along with the rest of the Finance Bill with whatever marginal changes they may have to make after the proforma discussion in parliament. This could even be a bait for the Congress not to make too much noise during the discussion on the budget. But will that happen or should that be allowed to happen?
While whatever legal challenges can be mounted, will, another possibility comes to mind – recusal. But this makes a very serious and doubtful assumption, which is that our members of parliament (MPs) have some honour left.
The process of recusal can be understood to mean the removal of someone from participation in something to avoid a conflict of interest.
Would it be proper for MPs belonging to the BJP and the Congress to vote on the FCRA amendment included in the Finance Bill, given the fact that the Supreme Court is seized of a matter on this specific issue? Is it not ‘honourable’ for them to recuse themselves from voting on this issue?
Of course, it is safe to assume that both the parties will, in all probability, issue whips to their MPs to vote for this provision. But even then, what might be the ‘honourable’ course of action for the Speaker who is supposed to be above the political parties? Would it not be ‘honourable’ for the Speaker to at least mention the possibility of recusal, given the obvious conflict of interest?
As we wait to see if the MPs opt for recusal, one can only hope that those who have been elected as representatives of the people might take the interest of the people and the nation into account while deciding their actions.
Jagdeep S. Chhokar is a former professor, dean, and director in-charge of the Indian Institute of Management, Ahmedabad, and a founder-member of the Association for Democratic Reforms.