IN THE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL WRIT JURISDICTION)

Civil W.P No. _____ of 2011

(PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:-

Indian Social Action Forum (INSAF)

…PETITIONER

VERSUS

Union of India

…RESPONDENT

PAPER BOOK

(FOR INDEX KINDLY SEE INSIDE)

ADVOCATE FOR THE PETITIONER: AAGNEY SAIL NEW DELHI

DATED: August 5th, 2011

IN THE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL WRIT JURISDICTION)

Civil W.P No. _____ of 2011

(PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:-

Indian Social Action Forum (INSAF) …PETITIONER

VERSUS

Union of India …RESPONDENT

INDEX

SR.

NO.

PARTICULARS PAGE NO.

1. NOTICE OF MOTION. A

2. URGENT APPLICATION B

3. MEMO OF PARTIES C

4. SYNOPSIS AND LIST OF DATES D-K

5. WRIT PETITION UNDER ARTICLE 226 OF THE

CONSTITUTION WITH AFFIDAVIT

1-22

6. ANNEXURE – P1(colly):

Copy of Memorandum of Association of the

Petitioner, certificate of registration as well as

letter dated 18.2.2008 by the Ministry of Home

Affairs, Government of India regarding

registration under Foreign Contribution

(Regulations) Act, 1976.

22-31

7. ANNEXURE – P2:

Copy of the Foreign Contribution (Regulation)

Bill, 2006 [Bill No. CXII of 2006] as introduced

in the Rajya Sabha on 18.12.2006.

32-65

8. ANNEXURE – P3:

Copy of the 134th Report of the ‘Committee on

66-89

Home Affairs’ on the Foreign Contribution

(Regulation) Bill, 2006.

9. ANNEXURE – P4:

Copy of the National Policy on Voluntary Sector,

2007

90-102

10. ANNEXURE – P5:

Gazette copy of the Foreign Contribution

(Regulation) Act, 2010.

103-122

11. ANNEXURE – P6:

Gazette copy of the Foreign Contribution

(Regulation) Rules, 2011.

123-144

12. VAKALATNAMA

145

Through

(Aagney Sail)

Advocate for the Petitioner

#102, New Lawyers Chambers,

M.C.Setalvad Block, Supreme Court of India,

Bhagwan Das Road, New Delhi - 110001

IN THE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL WRIT JURISDICTION)

Civil W.P No. _____ of 2011

(PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:-

Indian Social Action Forum (INSAF) …PETITIONER

VERSUS

Union of India …RESPONDENT

NOTICE OF MOTION 

To,

The Standing Counsel,

Union of India, Chamber Nos. 449-450,

Delhi High Court.

Please take note that the above noted matter will be listed on

10/08/2011 before the Hon’ble High Court of Delhi. It is, therefore,

requested to you to please enter your appearance on the said date.

PETITIONER

Through

Aagney Sail

Advocate for the Petitioner

#102, New Lawyers Chambers,

M.C.Setalvad Block, Supreme Court of India,

Bhagwan Das Road, New Delhi - 110001

IN THE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL WRIT JURISDICTION)

Civil W.P No. _____ of 2011

(PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:-

Indian Social Action Forum (INSAF) …PETITIONER

VERSUS

Union of India …RESPONDENT

URGENT APPLICATION To,

THE REGISTRAR,

OF THE HIGH COURT OF DELHI,

AT NEW DELHI.

Sir,

Kindly treat the accompanying Writ as an urgent one as per the

Delhi High Court Rules.

The ground of urgency is that the Foreign Contribution (Regulation)

Act, 2010 and its Rules, 2011 are challenged as being unconstitutional and

violative of the fundamental rights. The said Act and Rules are in force.

It is most humbly prayed that an urgent hearing be given.

Through

Through

Aagney Sail

Advocate for the Petitioner

#102, New Lawyers Chambers,

M.C.Setalvad Block, Supreme Court of India,

Bhagwan Das Road, New Delhi - 110001

IN THE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL WRIT JURISDICTION)

Civil W.P No. _____ of 2011

(PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:-

Indian Social Action Forum (INSAF) …PETITIONER

VERSUS

Union of India …RESPONDENT

MEMO OF PARTIES

Indian Social Action Forum (INSAF),

Through its General Secretary,

A-124/6, Katwaria Sarai,

New Delhi 110016 …Petitioner

Versus

The Union of India,

Through its Secretary,

Ministry of Home Affairs,

North Block, Central Secretariat,

New Delhi - 110001 …Respondent

SYNOPSIS & LIST OF DATES

This Writ Petition under Article 226 of the Constitution has been filed

challenging constitutional validity of Section 5(1) & 5(4) of the

Foreign Contribution (Regulation) Act, 2010 (hereafter referred to as

the ‘2010 Act’) and Rule 3(i), 3(v) & 3(vi) of the Foreign

Contribution (Regulation) Rules, 2011 (hereinafter referred to as the

‘Rules of 2011’) by which the Central Government has been given

unchecked and unbridled powers to categorize virtually any

organization as “organization of political nature, not being a political

party” and thereby deny acceptance of Foreign Contribution without

prior permission of the Central Government. The petitioner submits

that the said provisions in the 2010 Act and the Rules of 2011 are

violative of Article 14, 19(1)(a), 19(1)(c) & 21 of the Constitution.

LIST OF DATES

5th May, 2004 The Petitioner-INSAF is registered under the

Societies Registration Act, 1860 on 5 May 2004.

Indian Social Action Forum (INSAF) is a forum of

peoples’ movements, NGOs, human rights groups,

etc. all over India, involved in resisting

globalization, combating communalism and

defending democracy. INSAF believes that the

fundamental rights enshrined in the Constitution of

India need to be safeguarded against blatant and

rampant violations by the State and private

corporations. INSAF has actively campaigned

against land grab by corporations, ecological

disaster by mining companies, water privatization,

genetically modified food, hazardous nuclear

power, anti-people policies of international

financial institutions like World Bank and Asian

Development Bank, repeal of draconian anti-

democratic legislations like, Armed Forces Special

Powers Act and Unlawful Activities (Prevention)

Act. INSAF firmly believes in a secular and

peaceful social order and opposes communalism

and the targeted attacks on the lives and rights of

people including religious minorities. INSAF

regularly organizes campaigns, workshops,

conventions, fact findings, peoples tribunals,

solidarity actions for peoples movements and

educational-publications. INSAF is also actively

involved in international fora like Jubilee South,

NGO Forum on ADB, Asia Europe Peoples’ Forum,

Barcelona Consensus, etc.

The Petitioner-INSAF has organized several

public hearings and conventions like the

convention on repression of peoples movements in

December, 2010 in New Delhi, Independent

Peoples’ tribunal on development, displacement

and repression in Jharkhand during February,

2009.

INSAF has several publications in English and

Hindi to its credit like:

1. Peace Counts exhibition

2. Report of the “Independent Peoples tribunal

on development, displacement and

repression in Jharkhand”

3. Water laws in India, Pakistan, Bangladesh

and Nepal

4. Hoodwinked in the hothouse: false solutions

on climate change

5. UID: tacking profiling and surveillance of

citizens

6. Seedlings – Agrofuels

7. Seedlings – Indian Agrofuels

8. Seedlings – Climate Crisis

9. Panchayati Raj (in Hindi only)

23.05.2005 The draft Bill named ‘Foreign Contribution

Management and Control) Bill, 2005’, as was

presented to the Cabinet, has been uploaded on

the Ministry of Home Affairs website for seeking

comments/views of different stakeholders by

31.07.2005. The said Bill of 2005 was referred to

the Group of Ministers by the Cabinet on

23.06.2005.

24.06.2005 The Ministry of Home Affairs organized a national

& 25.06.2005 seminar on Foreign Contribution (Regulation) Act,

1976 wherein suggestions of various stakeholders

were considered.

18.12.2006 The Foreign Contribution (Regulation) Bill, 2006

[Bill No. CXII of 2006] (hereafter referred to as

‘the 2006 Bill’) was introduced in the Rajya Sabha

by Shri S. Reghupathy, Minister of State for Home

Affairs.

22.12.2006 In pursuance of the rules relating to the

Department-related Parliamentary Standing

Committees, the Chairman, Rajya Sabha, referred

the 2006 Bill to the Committee on Home Affairs for

examination and report within three months.

09.02.2007 The Committee on Home Affairs (hereafter

referred to as ‘the Committee’) issued a press

communiqué on the 2006 Bill inviting

views/suggestions.

12.06.2007 The Committee in its meeting heard the

presentation of the Home Secretary, Government

of India on the 2006 Bill.

16.07.2007 The Committee in its sittings heard the views of Dr

17.07.2007 Bimal Jalan, Member of Parliament, Rajya Sabha

& 03.10.2007 and ex-Governor, Reserve Bank of India (RBI) and

representatives of the RBI, State Bank of India,

ICICI Bank, HDFC Bank, Catholic Bishop’s

Conference of India, National Council of Churches

in India, National Council of YMCA of India,

Representatives of Voluntary Action Network India

and Institute of Chartered Accountants of India.

Dr. Bimal Jalan, Member of Parliament and ex-

Governor of RBI submitted before the Committee

that making the provisions in the 2006 Bill

stringent may result in stifling the legitimate

activities of the NGOs more than their illegitimate

activities.

Six major national Political Parties submitted that

India is a democratic republic. So everyone has

the right to be part of the political process.

Prohibition of ‘organization of political nature’ from

receiving foreign contribution seems to be

inconsistent with the rights guaranteed by the

Constitution of India.

06.11.2007 The Committee in its sittings heard

& 09.01.2008 representatives of Planning Commission on the

compatibility of the 2006 Bill vis-à-vis National

Policy on Voluntary Sector, a policy document of

Voluntary Sector Cell, Planning Commission,

Government of India. The Committee also heard

Heads of the four expert groups who had worked

on the draft policy.

The National Policy on Voluntary Sector, 2007 was

considered and approved by the Cabinet on

17.05.2007 and it was notified in the Gazette of

India on 31.07.2007. The National Policy on

Voluntary Sector, 2007 states that,

“Para 4.1: The independence of VOs allows them to explore alternative paradigms of development to challenge social, economic and political forces that may work against public interest and to find new ways to combat poverty, deprivation and other social problems. It is therefore crucial that all laws, policies, rules and regulations relating to VOs categorically safeguard their autonomy, while simultaneously ensuring their accountability.”

“Para 4.7: International funding of voluntary organizations plays a small, but significant part in supporting such organizations and their work in the country. An organization seeking foreign funding must be registered under the Foreign Contribution (Regulation) Act. This law prescribes stringent screening norms that often restrict the ability of VOs to avail foreign funds. When approved, there are problems like funds must be held in a single bank account, thus presenting enormous difficulties to VOs working at different locations. The Government will review the FCRA and simplify its provisions that apply to VOs, from time to time, in consultation with the joint consultative group to be set up by the concerned Ministry (as suggested under para 5.4).

18.02.2008 The Petitioner received registration under Foreign

Contributions (Regulation) Act, 1976. INSAF

receives foreign funds support from Bread for the

World (Germany), SWISSAID (Switzerland),

HIVOS (Netherlands), Grassroots International

(USA) and Global Greengrants Fund (USA).

15.05.2008 The Committee took up clause-by-clause

& 16.05.2008 consideration of the 2006 Bill.

04.07.2008 The Committee considered the draft Report in its

sitting on 04.07.2008 and adopted the same.

21.10.2008 The Committee’s 134th Report on the Foreign

Contribution (Regulation) Bill, 2006 is presented to

the Rajya Sabha and laid on the table of Lok

Sabha.

19.08.2010 The Foreign Contribution (Regulation) Bill, 2010

[Bill No. CXII-C of 2006] (hereafter referred to as

‘the 2010 Bill’) is passed by the Rajya Sabha.

27.08.2010 The 2010 Bill as passed by Rajya Sabha is debated

in the Lok Sabha and passed.

26.09.2010 The 2010 Bill receives the assent of the President

of India.

27.09.2010 The Foreign Contribution (Regulation) Act, 2010

(Act No. 42 of 2010) (hereafter referred to as the

‘2010 Act’) is notified in the Gazette of India –

Extraordinary – Part II – Section I.

29.04.2011 The Central Government by Gazette Notification

S.O. 909(E) appoints 01.05.2011 as the date on

which the provisions of the 2010 Act shall come

into force.

29.04.2011 The Central Government in exercise of the powers

conferred by Section 48 of the 2010 Act publishes

the Foreign Contribution (Regulation) Rules,

2011(hereafter ‘Rules of 2011’) vide Gazette

notification vide G.S.R. 349(E). The said rules are

to come into force on the same day as the 2010

Act. Rule 3 is relevant for the purpose of this writ

petition, which reads as follows:.

“3. Guidelines for declaration of an

organization to be of a political nature,

not being a political party.- The central

Government may specify any organization as

organization of political nature on one or

more of the following grounds:

(i) organization having avowed political

objectives in its Memorandum of Association

or bylaws:

(ii) any Trade Union whose objectives include

activities for promoting political goals:

(iii) any voluntary action group with objectives

of a political nature or which participates in

political activities;

(iv) front or mass organizations like Students

Unions, Workers’ Unions, Youth Forums and

Women’s wing of a political party;

(v) organization of farmers, workers, students,

youth based on caste, community, religion,

language or otherwise, which is not directly

aligned to any political party, but whose

objectives, as stated in the Memorandum of

Association or activities gathered through

other material evidence, include steps

towards advancement of political interests

of such groups;

(vi) any organization, by whatever name

called, which habitually engages itself in or

employs common methods of political

action like ‘bandh’ or ‘hartal’, ‘rasta roko’,

‘rail roko’ or jail bharo’ in support of public

causes.”

01.05.2011 The Foreign Contribution (Regulation) Act, 2010 &

the Foreign Contribution (Regulation) Rules, 2011

come into force. Consequently, the earlier act,

viz., the Foreign Contribution (Regulation) Act,

1976 is repealed.

05.08.2011 The present Writ Petition filed under Article 226 of

the Constitution challenging the constitutional

validity and ultra-vires nature of Section 5(1) &

5(4) of the 2010 Act and Rules 3 (i), 3(v) and

3(vi) of the Rules of 2011.

IN THE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL WRIT JURISDICTION)

Civil W.P No. _____ of 2011

(PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:

Indian Social Action Forum (INSAF),

Through its General Secretary,

A-124/6, Katwaria Sarai,

New Delhi 110016 …Petitioner

Versus

The Union of India,

Through its Secretary,

Ministry of Home Affairs,

North Block, Central Secretariat,

New Delhi - 110001 …Respondent

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION

To,

The Hon’ble Chief Justice and his Hon’ble

Companion Justices of the High Court of Delhi at New Delhi

The humble Petition of the above named petitioner most respectfully

sheweth:

1. This Writ Petition under Article 226 of the Constitution has

been filed challenging constitutional validity of Section 5(1) &

5(4) of the Foreign Contribution (Regulation) Act, 2010

(hereafter referred to as ‘2010 Act’) and Rules 3(i), 3(v) &

3(vi) of Foreign Contribution (Regulation) Rules, 2011

(hereinafter referred to as the ‘Rules of 2011’) by which the

Central Government has been given unchecked and unbridled

powers to categorize virtually any organization as

“organization of political nature, not being a political party”

and thereby deny acceptance of Foreign Contribution without

prior permission of the Central Government. The petitioner

submits that the said provisions in the Act of 2010 and the

Rules of 2011 are violative of Article 14, 19(1)(a), 19(1)(c) &

21 of the Constitution of India.

2. That the facts relevant for the purpose of this writ petition are

as follows:

2.1 Indian Social Action Forum (INSAF) is a forum of peoples’

movements, NGOs, human rights groups, etc. all over

India, involved in resisting globalization, combating

communalism and defending democracy. INSAF believes

that the fundamental rights enshrined in the Constitution of

India need to be safeguarded against blatant and rampant

violations by the State and private corporations. INSAF has

actively campaigned against land grab by corporations,

ecological disaster by mining companies, water

privatization, genetically modified food, hazardous nuclear

power, anti-people policies of international financial

institutions like World Bank and Asian Development Bank,

repeal of draconian anti-democratic legislations like, Armed

Forces Special Powers Act and Unlawful Activities

(Prevention) Act. INSAF firmly believes in a secular and

peaceful social order and opposes communalism and the

targeted attacks on the lives and rights of people including

religious minorities. INSAF regularly organizes campaigns,

workshops, conventions, fact findings, peoples tribunals,

solidarity actions for peoples movements and educational-

publications. INSAF is also actively involved in international

fora like Jubilee South, NGO Forum on ADB, Asia Europe

Peoples’ Forum, Barcelona Consensus, etc.

2.2 The Petitioner-INSAF has organized several public hearings

and conventions like the convention on repression of

peoples movements in December, 2010 in New Delhi,

Independent Peoples’ Tribunal on Development,

Displacement and repression in Jharkhand during February,

2009.

INSAF has several publications in English and Hindi to its

credit like:

1. Peace Counts exhibition

2. Report of the “Independent Peoples tribunal on

development, displacement and repression in

Jharkhand”

3. Water laws in India, Pakistan, Bangladesh and Nepal

4. Hoodwinked in the hothouse: false solutions on

climate change

5. UID: tacking profiling and surveillance of citizens

6. Seedlings – Agrofuels

7. Seedlings – Indian Agrofuels

8. Seedlings – Climate Crisis

9. Panchayati Raj (in Hindi only)

The Petitioner shall submit before this Hon’ble Court

several other publication by Petitioner – INSAF and details

of its activities.

2.3 The Petitioner-INSAF is registered under the Societies

Registration Act (XXI) of 1860 on 5 May 2004 and under

Foreign Contributions (Regulation) Act, 1976 on 18

February 2008. INSAF receives foreign funds support from

Bread for the World (Germany), SWISSAID (Switzerland),

HIVOS (Netherlands), Grassroots International (USA) and

Global Greengrants Fund (USA). The Petitioner shall

produce, if required, funding it received from these

organizations for its different programmes. A true and

correct copy of the Memorandum of Association of the

Petitioner, certificate of registration as well as letter dated

18.2.2008 by the Ministry of Home Affairs, Government of

India regarding registration under Foreign Contribution

(Regulations) Act, 1976 is hereto marked and annexed as

ANNEXURE P-1 (Colly).

2. That the Ministry of Home Affairs drafted the Foreign

Contribution (Management and Control) Bill, 2005 and invited

public comments. However, after this Bill of 2005 was referred

to the Group of Ministers by the Cabinet on 23.06.2005 it was

allowed to lapse. Thereafter a second Bill was drafted by the

Ministry of Home Affairs known as the Foreign Contribution

(Regulation) Bill, 2006 (hereafter referred to as ‘Bill of 2006’).

This Bill of 2006 was introduced in the Rajya Sabha on

18.12.2006 and was referred to the Committee on Home

Affairs. A true and correct copy of the said Bill of 2006 is

hereto marked and annexed as ANNEXURE – P2.

3. That the Committee on Home Affairs (hereafter referred to as

‘Committee’) after inviting suggestions from the public on the

Bill of 2006 heard representations made by various stake

holders including Planning Commission, Ministry of Home

Affairs, Reserve Bank of India, banks, civil society, national

Political parties, Institute of Chartered Accountants of India

etc. Dr. Bimal Jalan, Member of Parliament and ex-Governor

of RBI submitted before the Committee that,

“5.1 Suggestions of Dr. Bimal Jalan: Dr. Jalan appeared

before the Committee on 16th July, 2007 and expressed

his viewpoints on the Bill. He stated that the NGOs,

particularly small organizations engaged in social, health

and educational work for disadvantaged sections of the

society were highly concerned about the implications of

this Bill. His main concern was about cumbersome and

bureaucratic administrative provisions in the Bill and

requested for review of this aspect with a view to

simplifying them.”

4. That similarly, before the Committee six major national

Political Parties submitted that,

“5.4(iv) India is a democratic republic. So everyone

has the right to be part of the political process. Clause 3

(1) (f), whereby the organization of political nature is

prohibited from accepting foreign contribution as

specified by the Central Government, seems to be

inconsistent with the rights guaranteed by the

Constitution of India. Therefore, Clauses 3(1) (f), 5(1)

and 54 (2) (b) be deleted.”

5. That NGOs who appeared before the Committee pointed out

that the provisions of the Bill of 2006 were not in conformity

with the National Policy on Voluntary Sector, 2007 formulated

by the Planning Commission. This has been referred to in para

6 of the report of the Committee.

6. That, the Committee on 21.10.2008 submitted its 134th

Report on the Foreign Contribution (Regulation) Bill, 2006 to

the Rajya Sabha and Lok Sabha. A true copy of the said 134th

report of the Committee on Home Affairs is hereto marked and

annexed as ANNEXURE – P3.

7. That the Committee heard representatives of the Planning

Commission on the compatibility of the Bill of 2006 vis-à-vis

the National Policy on Voluntary Sector (a policy document of

the Voluntary Sector Cell, Planning Commission, Government

of India). The National Policy on Voluntary Sector, 2007 was

considered and approved by the Cabinet on 17.05.2007 and it

was notified in the Gazette of India on 31.07.2007. The

National Policy on Voluntary Sector, 2007 states that,

“Para 4.1: The independence of VOs allows them to explore alternative paradigms of development to challenge social, economic and political forces that may work against public interest and to find new ways to combat poverty, deprivation and other social problems. It is therefore crucial that all laws, policies, rules and regulations relating to VOs categorically safeguard their autonomy, while simultaneously ensuring their accountability.”

“Para 4.7: International funding of voluntary organizations plays a small, but significant part in supporting such organizations and their work in the country. An organization seeking foreign funding must be registered under the Foreign Contribution (Regulation) Act. This law prescribes stringent screening norms that often restrict the ability of VOs to avail foreign funds. When approved, there are problems like funds must be held in a single bank account, thus presenting enormous difficulties to VOs working at different locations. The Government will review the FCRA and simplify its provisions that apply to VOs, from time to time, in consultation with the joint consultative group to be set up by the concerned Ministry (as suggested under para 5.4).

A true copy of the National Policy on Voluntary Sector, 2007 is

hereto marked and annexed as ANNEXURE – P4.

8. That the Foreign Contribution (Regulation) Bill, 2010 [Bill No.

CXII-C of 2006] (hereafter ‘Bill of 2010’) is passed by Rajya

Sabha on 19.08.2010. In the Rajya Sabha, the following

important debates took place:-

7.1 Shri M. Rama Jois (Rajya Sabha member from Karnataka)

whose book ‘Legal and Constitutional History of India’ is

prescribed by the Bar Council of India for the law degree,

made the following comments,

“ … Now, I will give an example. What about trade unions? There are a number of trade unions which are also registered organisations and about most of the trade unions we know to which political parties they are affiliated or belong to. If this sweeping power is given to the Central Government, the Central Government may say that a trade union is affiliated to a particular party, therefore, prevent them from getting foreign contribution. Therefore, my objection is that this 'political nature' is a very dangerous, wide and very vague expressions. The Supreme Court has held if a provision is capable of both use and abuse, then, it is violative of article 14 of the Constitution. Right from 1958 the Supreme Court in Ramkrishan Dalmia's case has said that any provision made by the legislation cannot be such that it is both capable of use as well as abuse. This is what has happened. Therefore, which is an organisation of a political nature is left to the sweet will of the Central Government. Section 5 provides that before making an order under sub-section (I), the Central Government shall give the organisation in respect of whom the order is proposed to be made, a notice in writing informing it of the ground or grounds, on which it is proposed to be specified as an organisation of political nature. So, the Government can issue a notice. It can say, 'your organisation is considered, in our opinion, an organisation of political nature, and therefore, we want to prohibit you from getting foreign contribution.' What do you say, Sir? Then, there is another interesting provision in Clause 5(2), which says, 'provided the Central Government may by rule specify' etc. Sir, 5(3) says that the organisation to whom a notice has been served under sub-section (2), may, within a period of thirty days from the date of the notice, make a representation to the Central Government giving reasons for not specifying such organisation as an organisation under sub-section (I).

The meaning is that the Central Government will issue notice stating reason to declare an association as of a political nature. Then they have given the right of representation. Then what is going to be done with that representation you see, provided that the Central Government may entertain. So, the time limit is there, more time is also given. Sir, subclause 4 is most important. It says that the Central Government, may, if it considers it appropriate, forward the representation referred to in sub-section (3) to any authority to report on such representation. What is that authority? First of all, it is left to the decision of the Central Government to refer or not to refer. Now, even if it decides to refer the representation given by a particular party or association, then, it can refer to some authority. Which is that authority, it is not specified. Then the Central Government may, after considering the representation and the report of the authority, etc. So, the Central Government may send it to some authority and that whatever opinion is given by that authority is taken into consideration and the Central Government will take a decision. My submission is you are doing it without specifying the authority, the status of the authority to which the representation is to be referred. My first objection is to power to declare an association of a political nature is itself dangerous. It is totally going to destroy the Fundamental Rights under article 19 (1) (C) of the Constitution. Even trade union activities can be barred from getting foreign contribution by exercise of this power. As far as this authority is concerned, the word authority is also extremely vague. It can be some authority of the choice of the Government. They can take the report of that authority and pass the final order.”(emphasis supplied)

7.2 In response to the queries raised by members including

Shri M. Rama Jois and others, Shri P. Chidambaram, Home

Minister said that,

“Sir, many of the things which the hon. Members said have to be dealt with in the rules. They may appear vague, but any law, Mr. Rama Jois knows, if you read it without the rules will appeal to be vague. But, many of the things have to be provided for in the rules.

Wherever it is necessary, wherever it becomes excessive delegation, we have provided it here. But most of the things have to be done in the rules and guidelines and that is why I

think any law which is drafted will appear to vest a large amount of discretion. But the rule making power is intended to control that discretion or power. Many of these will indeed be dealt with under the rules.

Now, Mr. Rama Jois mentioned clause 5. Clause 5 is already there in Section 5 of the present Act. You mentioned Clause 9. Clause 9 is already Section 10 in the present Act. These are not new provisions. These are the provisions which have been repeated because these are wholesome provisions that have stood the test of law. 'Political nature', in fact, we have said that the present law is rather vague. The new law says on political nature we will lay down guidelines, we will frame rules, we will issue a show cause notice, and we will give the reasons why an organisation is being called an organisation of a political nature. We will get their reply, and then we will pass an order either of placing them in the category of organizations of a political nature, and publish that notification. If it is abused, if it is unreasonable, they know how to challenge it in the court of law. In fact, we are making it more transparent, we are making it more rule based and more reason based.”(emphasis supplied)

9. The Parliament passed the Bill of 2010 enacting the Foreign

Contribution (Regulation) Act, 2010 [42 of 2010] (hereafter

referred to as ‘Act of 2010’) by which foreign contribution and

foreign hospitality has been regulated. The Act of 2010

received the assent of the President of India on 26.09.2010

and was notified in the Gazette of India on 27.09.2010. The

Act of 2010 comes into force from 01.05.2011 vide Central

Government notification repealing the earlier act, viz., the

Foreign Contribution (Regulation) Act, 1976. The objective of

the Act of 2010 reads as follows:

“An Act to consolidate the law to regulate the

acceptance and utilisation of foreign contribution or

foreign hospitality by certain individuals or associations

or companies and to prohibit acceptance and utilization

of foreign contribution or foreign hospitality for any

activities detrimental to the national interest and for

matters connected therewith or incidental thereto.”

10. That under Section 3 of the Act of 2010, it is, inter-alia,

provided that no foreign contribution shall be accepted by

any; candidate for election, journalists, judge, Government

servant or employee, member of any Legislature, political

party, organisation of political nature, association or company

involved in audio news or audio visual news. Under Section 5

of the Act of 2010, the procedure for notifying an organisation

of a political nature has been provided. Section 5 of the Act of

2010 being relevant for the purpose of this Writ Petition is

quoted below:

“5. Procedure to notify an organisation of a political nature. –

5.1 The Central Government may, having regard to the activities

of the organisation or the ideology propagated by the

organisation or the programme of the organisation or the

association of the organisations with the activities of any

political party, by an order published in the Official Gazette,

specify such organisation as an organisation of a political

nature not being a political party, referred to in clause (f) of

sub-section (1) of section 3:

Provided that the Central Government may, by rules

made by it, frame the guidelines specifying the ground

or grounds on which an organisation shall be specified

as an organisation of a political nature.

5.2 Before making an order under sub-section (1), the Central

Government shall give the organisation in respect of whom

the order is proposed to be made, a notice in writing

informing it of the ground or grounds, on which it is proposed to

be specified as an organisation of political nature under that

sub-section:

5.3 The organisation to whom a notice has been served under

sub-section (2), may, within a period of thirty days from the

date of the notice, make a representation to the Central

Government giving reasons for not specifying such

organisation as an organisation under sub-section (1):

Provided that the Central Government may entertain

the representation after the expiry of the said period of

thirty days, if it is satisfied that the organisation was

prevented by sufficient cause from making the

representation within thirty days.

5.4 The Central Government may, if it considers it appropriate,

forward the representation referred to in sub-section (3) to

any authority to report on such representation.

5.5 The Central Government may, after considering the

representation and the report of the authority referred to in

sub-section (4), specify such organisation as an organisation

of a political nature not being a political party and make an order

under sub-section (1) accordingly.

5.6 Every order under sub-section (1) shall be made within a

period of one hundred and twenty days from the date of issue

of notice under sub-section (2):

Provided that in case no order is made within the said

period of one hundred and twenty days, the Central

Government shall, after recording the reasons therefor,

make an order under sub-section (1) within a period of

sixty days from the expiry of the said period of one

hundred and twenty days.” (emphasis supplied)

A true and correct Gazette copy of the Foreign Contribution

(Regulation) Act, 2010 is hereto marked and annexed as

ANNEXURE – P5.

11. According to the said Section 5, the Central Government may

by an order published in the official gazette declare

“organisation of a political nature, not being a political party"

means such organisation as the Central Government may,

having regard to the ‘activities’ of the organisation or the

‘ideology’ propagated by the organisation or the ‘programme’

of the organisation or the ‘association of the organisation’ with

the activities of any political party, by an order published in

the Official Gazette, specified in this behalf. This part of

Section 5 of the Act of 2010 is amenable to abuse because on

the basis of activities, ideology, association or programme of

the organisation, which expressions have not been defined or

explained, an organisation can be declared to be that of

political nature. The guidelines framed under the rules also do

not explain these expressions.

12. That under Section 48 of the Act of 2010, the Central

Government published in the Gazette of India the Foreign

Contribution (Regulation) Rules, 2011 (hereafter referred to as

‘Rules of 2011’). The said Rules of 2011 came into force on

the same day as the Act of 2010 i.e. on 01.05.2011. Under

Rule 3, guidelines have been provided for declaration of an

organization to be of a political nature though it is not a

political party. The said Rule 3 is quoted here for ready

reference:

“3. Guidelines for declaration of an organization to be of a

political nature, not being a political party.- The central

Government may specify any organization as organization of

political nature on one or more of the following grounds:

(i) organization having avowed political objectives in its

Memorandum of Association or bylaws:

(ii) any Trade Union whose objectives include activities for

promoting political goals:

(iii) any voluntary action group with objectives of a political

nature or which participates in political activities;

(iv) front or mass organizations like Students Unions,

Workers’ Unions, Youth Forums and Women’s wing of a

political party;

(v) organization of farmers, workers, students, youth

based on caste, community, religion, language or

otherwise, which is not directly aligned to any political

party, but whose objectives, as stated in the

Memorandum of Association or activities gathered

through other material evidence, include steps towards

advancement of political interests of such groups;

(vi) any organization, by whatever name called, which

habitually engages itself in or employs common

methods of political action like ‘bandh’ or ‘hartal’, ‘rasta

roko’, ‘rail roko’ or jail bharo’ in support of public

causes.”(emphasis supplied)

A true and correct copy of the Foreign Contribution

(Regulation) Rules 2011 is hereto marked and annexed as

ANNEXURE – P6.

6. That the petitioner is challenging constitutional validity of

Section 5(1) & 5(4) of the Foreign Contribution (Regulation)

Act, 2010 and Rules 3(i), 3(v) & 3(vi) of Foreign Contribution

(Regulation) Rules, 2011 and has not filed any other writ

Petition challenging the same before this Hon’ble Court or any

other Court.

GROUNDS:

1. That the present Writ Petition has been filed on the following,

among other, grounds.

1.1 Because under Section 5(1) of Act of 2010, the Central

Government has been given powers to declare an

organization to be of political nature and to publish the

order regarding such organization in the Official Gazette

having regard to the activities of the organization, its

ideology, its programs and its associations. The Section,

however, does not provide for the guidelines on the basis of

which the said declaration could be made. The expressions

‘ideology’, ‘activities’, ‘programme’ and ‘association of the

organisation’ have not been explained or defined anywhere

in the Act of 2010 or the Rules of 2011. The Petitioner

submits that in absence of any precise definitions of these

expressions they are amenable to abuse resulting in

arbitrary exercise of powers and are therefore violative of

Article 14 of the Constitution.

1.2 Because under Section 5(4) of the Act of 2010, the term

‘authority’ has been mentioned to which representation

may be forwarded. The authority has not been defined

anywhere. It is important that the authority should be an

independent authority so that it can give an independent

and unbiased report to the Central Government for its

consideration under Section 5(5) of the Act of 2010.

Without specifying the authority and its functions and

parameters the whole machinery provided under Section 5

of the Act of 2010 becomes unworkable. As a result, the

decision under Section 5 of the Act of 2010 becomes

arbitrary affecting the rights of the organisations receiving

foreign contribution.

1.3 Because the guidelines have been provided only under the

Rules of 2011, in particular, vide Rule 3. It is submitted

that the guidelines in Rule 3 are extremely wide, without

any checks and gives arbitrary discretion, which render the

said Rule being subjected to misuse and abuse. These

Rules suffer both from unreasonableness, arbitrariness as

well as for not creating a discernible classification between

the political activities and other social or public activities.

The Rules seek to interfere with the activities of the

organization in important areas of national life which are

impermissible under this Constitution. The Rules 3(i), 3(v)

& 3(vi) are therefore contrary to the object of the Act of

2010 as well as ultra-vires Articles 14, 19(i)(a), 19(1)(c) &

21 of the Constitution.

1.4 Because under Rule 3(i) of Rules of 2011, the Central

Government may declare an organization to be of political

nature in case the organization, in its memorandum of

association or byelaws, has avowed ‘political objective’. The

Rule nowhere defines what is meant by ‘political objective’.

In a democracy governed by the Rule of Law and having a

written Constitution, it is permissible that an organization

or an individual protests or insists on the government

keeping up its political objective consistent with the

Constitution and Directive Principles. The term ‘political

objective’ includes the governance as well as policies of the

Government. The said provision is thus totally unguided,

vast and confers arbitrary and unreasonable powers to the

Central Government and therefore, violative of the Article

14 of the Constitution.

1.5 Because under Rule 3(v) of the Rules of 2011, an

organization of farmers, workers, students, youth based on

caste, community, religion, language or otherwise which is

not directly aligned to any Political party, can be

categorized as a political organization if:

(a) Its objective include steps towards advancement

of political interest of such groups; or

(b) Activities gathered through material evidence

include steps towards advancement of political

interest of such group.

(Emphases supplied)

It is clear from the above for e.g. an organization of farmers

indulges in an activity for the purpose of empowering itself for

realization of its human rights/ Fundamental Rights, which

may include political empowerment as well, it may be put

under the category of “organization of a political nature.” The

Act of 2010 or the Rules of 2011 do not define what is the

meaning and scope of the expression “political interest.”

Under the International Convenant on Civil and Political

Rights, 1967 (hereafter referred to as ‘ICCPR’) of which India

is a signatory, treats the civil and political rights as part of

human rights. Under the provisions of the Protection of Human

Rights Act, 1993 (hereafter referred to as ‘Act of 1993).

‘Human Rights’ have been defined under Section 2 (d), which

means the rights relating to life, liberty, equality and dignity of

the individual guaranteed by the Constitution or embodied in

the International Covenants. ‘International Covenants’ is also

defined under Section 2(f) which mean covenant on Civil and

Political Rights (ICCPR) & International Covenants on

Economic Social and Cultural Rights (ICESCR). Therefore,

what has been provided as ‘political right’ in the ICCPR has

been taken to be part of Human Rights. The aim and object of

the Act of 1993 is to promote, protect and implement the civil

and political rights of an individual/organization. It is,

therefore, not understood on what basis for e.g. the farmers’

organization will be termed as political organization to deny

foreign contribution. The denial of foreign contribution will, in

fact, result in infringement of activities of the organization

which are a necessary and inalienable part of democracy and

Rule of Law. Such an action will not be consistent with the

values of a Sovereign democratic republic which recognizes

the right of protest. The said provision therefore is violative of

not only Article 14 but also 19(1)(a) & 19(1)(c) of the

Constitution. The power which has been given in the Rules of

2011, therefore, is un-canalized, arbitrary and does not make

a difference between a ‘political activity’ and advancement of

political rights of an organization. It is, therefore, violative of

Article 14 of the Constitution.

1.6 Because Rule 3(vi) of the Rules of 2011, is also

unconstitutional for the reason that if an organization indulges

in ‘bandh’, ‘hartal’, ‘rasta roko’, ‘rail roko’, or jail bharo’,

which actions are in support of public causes, it will be termed

as “political action” and such organization will be declared as

a political organization. In a democracy, some of these actions

are accepted methods of expressing the public grievances.

They are the only tools in the hands of people to show their

disagreement or dissatisfaction with the functioning of the

Government. The said provision also suffers from the vice of

arbitrariness and unreasonableness because by using these

arbitrary guidelines any organization which has indulged in

‘bandh’, ‘hartal’ ‘jail bharo’ etc. will be termed as a political

organization and will be denied foreign contribution. By this

action of the Central Government, the right of a

Citizen/Organization of its democratic right of protest will be

seriously affected. The said provision, therefore, is violative of

Articles 14 and 19(1)(a) of the Constitution.

1.7 Because the rights conferred under the ICCPR, among other

covenants, have been accepted as a part of municipal law by

the Supreme Court as they enhance the content of Article 21

of the Constitution. [vide: PUCL Vs UOI and Ors 1997 (3) SCC

433 and Kapila Hingorani Vs. State of Bihar 2003 (6) SCC 1].

Under the Protection of Human Rights Act, 1993 the provisions

of ICCPR have, in fact, been treated as part of Article 21 of the

Constitution. By denying the political advancement or political

expression, an organization’s human rights which are part of

Article 21, have been curtailed. Similarly, by categorizing

certain actions as being political for the purpose of denying

them certain benefits under foreign contribution, in fact, really

amounts to suppression of their human rights as well as

freedom of expression under Article 19(1)(a) of the

Constitution. These rules are therefore, unconstitutional.

1.8 Because it has been held in Himmat Lal K Shah Vs

Commissioner of Police Ahmedabad [(1973) 1 SCC 227] that,

“Para : It seems to us that it follows from the above

discussion that in India a citizen had, before the

Constitution, a right to hold meetings on public streets

subject to the control of the appropriate authority

regarding the time and place of the meeting and subject

to considerations of public order.

Para : If the right to hold public meetings flows from

Art. 19 (1) (b and Art. 19 (1) (d) it is obvious that the

State cannot impose unreasonable restrictions.

Para : Public meeting in open spaces and public streets

forms part of the tradition of our national life. In the

pre- Independence days such meetings have been held

in open spaces and public streets and the people have

come to regard it as a part of their privileges and

immunities.”

Further, it has been held in Rohtas Industries Ltd Vs Rohtas

Industrial Staff Union [(1976) 2 SCC 82]

“Para :Our constitution guarantees the right to form

associations, not for gregarious pleasure, but to fight

effectively for the redressal of grievances. Our

constitution is sensitive to workers rights. English

history, political theory and life style being different from

Indian conditions where the Father of the Nation

organised boycotts and mass satyagrahas we cannot

incorporate English conditions without any adaptation

into Indian Law.”

1.9 Because a detailed discussion had taken place on the Foreign

Contribution (Regulation) Bill, 2006 before the Committee

where several eminent persons, national political parties,

NGOs, Planning Commission etc. had expressed their views

and reservations against several provisions in the Bill. The

Planning Commission had also expressed its view in view of its

National Policy on Voluntary Sector, 2007. In the said policy

the contributions made by the Voluntary Sector was

considered and they were allowed to mobilize necessary

financial resources from India and abroad to share

responsibility with the Government. None of these suggestions

or contributions were incorporated in the Act of 2010 or the

Rules of 2011.

1.10 Because there was a good debate in the Rajya Sabha on

several provisions of the Act of 2010. The justifications which

were given by the Government in order to sustain the validity

of the provisions themselves show that serious lacunae

existed in the legal provisions, which in submission of the

Petitioner makes them vulnerable to challenge. The

explanation which was given in the Rajya Sabha that the

vagueness which exist in the provisions will be explained in

the rules, has not been fulfilled as the Rules of 2011 are as

vague as the main Act of 2010.

1.11 Because there is vast difference between the preamble of the

Foreign Contribution (Regulation) Act, 1976 (Act of 1976) and

the preamble of the Act of 2010. That itself demonstrates that

through the Act of 2010 the constitutional protections have

been diluted and the present Act of 2010 attempts to achieve

that which is not permissible under the Constitution.

Preamble of Act of 1976

Preamble of Act of 2010

An Act to regulate the acceptance and utilization of foreign contribution or foreign hospitality by certain persons or associations, with a view to ensuring that parliamentary institutions, political associations and academic and other voluntary organisations as well as individuals working in the important areas of national life may function in a manner consistent with the values of a sovereign democratic republic, and for matters connected therewith or incidental thereto.

An Act to consolidate the law to regulate the acceptance and utilisation of foreign contribution or foreign hospitality by certain individuals or associations or companies and to prohibit acceptance and utilization of foreign contribution or foreign hospitality for any activities detrimental to the national interest and for matters connected therewith or incidental thereto.

1.12 Because the consequences of withdrawal of foreign

contribution registration on an NGO/civil society is very

serious. The civil and evil consequences of cancellation of

foreign contribution registration could be that not only persons

who are employed with the NGO or civil society will lose their

employment but it will have an adverse effect on the activities

done by the organisation namely, those working for upliftment

of poor, farmers, fighting against discrimination of women, for

protection of environment and for establishing the democratic

rights of the people etc.

PRAYER

2. The petitioner, therefore, prays that in the facts and

circumstances of the present case this Hon’ble Court may be

to:

(1) Issue a writ of mandamus/certiorari or a writ or

declaration of like nature to declare Section 5(1) & 5(4)

of the Foreign Contribution (Regulation) Act, 2010 and

Rules 3(i), 3(v) & 3(vi) of the Foreign Contribution

(Regulation) Rules, 2011 as being violative of Articles 14,

19(1)(a), 19(1)(c) and 21 of the Constitution.

(2) Pass such other order(s) which this Hon’ble Court may

deem fit and proper in the facts and circumstances of the

case.

FOR THIS ACT OF KINDNESS THE PETITIONER/APPLICANT HEREIN

AS IN DUTY BOUND SHALL EVER PRAY.

Drawn and Filed by

SETTLED BY: [AAGNEY SAIL]

SANJAY PARIKH, ADVOCATE ADVOCATE FOR THE PETITIONER

#102, New Lawyers Chambers,

M.C.Setalvad Block, Supreme Court of India,

Bhagwan Das Road, New Delhi - 110001

IN THE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL WRIT JURISDICTION)

Civil W.P No. _____ of 2011

(PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:-

Indian Social Action Forum (INSAF) …PETITIONER

VERSUS

Union of India …RESPONDENT

AFFIDAVIT

I Chitranjan Singh, S/o late Shri Bahadur Singh, aged about 50

years, R/o A-124/6, Katwaria Sarai, New Delhi – 110016 do hereby

solemnly affirm and state as under: -

1. I say that I am the General Secretary of the Petitioner in

the above Writ Petition. I say that I am aware of the facts

and circumstances of the case and I am competent to

swear this Affidavit.

2. I say that the contents of the Writ Petition are true and

correct to my knowledge and information.

3. I say that the annexures are true and correct copies of

their respective originals.

DEPONENT

VERIFICATION:

Verified on this 4th day of August, 2011 that the contents of paras 1

to 3 of the above affidavit are true and correct and nothing material

has been concealed therefrom.

Verified at New Delhi on this the 4th day of August, 2011.

DEPONENT

IN THE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL WRIT JURISDICTION)

Civil W.P No. 5793 of 2011

(PUBLIC INTEREST LITIGATION)

IN THE MATTER OF :-

Indian Social Action Forum (INSAF) …PETITIONER

VERSUS

Union of India

..RESPONDENT

WRITTEN SUBMISSIONS BY SANJAY PARIKH, ADVOCATE ON BEHALF OF THE PETITIONER

1.1 The Foreign Contribution (Regulation) Act, 1976 (hereafter

referred to as ‘1976 Act’) provided for foreign contribution to

be received by an organisation of ‘political nature not being a

political party’ for which prior permission of the Central

Government was required. The preamble - of the 1976 Act

also provided foreign contribution for associations,

organization and individuals working in the important areas of

national life so that they “may function in a manner consistent

with the values of a sovereign democratic republic, and for

matters connected therewith or incidental thereto .”

(Emphasis supplied)

1.2 However, the Foreign Contribution (Regulation) Act, 2010

(hereafter referred to as ‘2010 Act’) prohibits completely

foreign contribution to an organisation of ‘political nature not

being a political party’ vide Section 3(f) of the 2010 Act. Even

the preamble of the 2010 Act has dropped the preamble of

1976 Act, of providing foreign contribution to organisations

working consistent with the values of sovereign, democratic

and republic. The preamble is in negative form and denies

foreign contribution “ for any activities detrimental to the

national interest and for matters connected therewith or

incidental thereto ” . (Emphasis supplied).

1.3 Non-governmental organisations (NGOs) function in various

fields like environment, human rights, gender discrimination

as well as issues concerning children, farmers, students etc. In

all these activities empowerment and creation of awareness

about rights is involved. The process of empowerment of

people ultimately leads to realization of their human and

constitutional rights, namely, social, political, economic, social

and cultural rights, among others.

1.4 Organisations working against discrimination of women and

for their empowerment may will lead to participation of these

women in local self-governance, gram panchayat and

advocacy as that may be thought as one of the ways to end

discrimination. Similarly, an organisation working for the

farmers’ rights and against mindless acquisition of their lands,

may oppose the government policy on acquisition. This may

be taken as a political action against the Government. An

organisation working for the workers’ rights may oppose the

liberalization policy of the government. This may be taken as

a view against the national interest. NGOs working for the

environment may advocate against the inappropriate

industrialization policy of the government leading to the

destruction of the environmental wealth. This may be taken

as an activity against development and, therefore, branded as

a political action against the political setup. In all these civil

society struggles, the organisations will be invariables

opposing the policy of the government or its actions which in

turn is influenced by the political regime in power. NGOs

protesting peacefully in support of their cause may suffer

arrest and put in jails by the government branding their

actions as being political.

1.5 The process of empowerment of people ultimately leads to

realization of their constitutional and human rights. Political

empowerment of people is necessary so that they realize their

political duties which ultimately sub serves the purpose of

vibrant democracy. This is quite different from politics which

is aligned with the political parties and their ideologies. One

can be political but still not aligned to any political party. He

may convey ideas on how the State should be run on certain

political principles and what is most suitable within the

parameters of the Constitution, for example, a

person/organisation following Gandhi ideology may talk of

gram swaraj and that the present politics is not permitting the

achievement of the Constitutional goals as envisioned by the

Father of the Nation. Can it be said that the activities of this

organisation/persons are of political nature?

1.6 As a matter of fact, the Planning Commission drafted

“National Policy on the Voluntary Sector, 2007” which inter-

alia, provided for encouraging, enabling and empowering the

voluntary sector so that it can contribute to the social, cultural

and economic advancement of the people of India. The said

document is enclosed at pages 90 to 102 of the writ petition.

This document, inter-alia, says :

“1.2 The voluntary sector has contributed significantly to finding innovative solutions to poverty, deprivation, discrimination and exclusion, through means such as awareness raising, social mobilization, service delivery, training, research, and advocacy. The voluntary sector has been serving as an effective non-political link between the people and the Government. This policy recognizes the important role that the voluntary sector has to play in various areas and affirms the growing need for collaboration with the voluntary sector by Government, as well as by the private sector, at the local, provincial and national levels. ”

3.1.2 To enable VOs to legitimately mobilize necessary financial resources from India and abroad ;

4.1 The independence of VOs allows them to explore alternative paradigms of development to challenge social, economic and political forces that may work against public interest and to find new ways to combat poverty, deprivation and other social problems. It is therefore crucial that all laws, policies, rules and regulations relating to VOs categorically safeguard their autonomy, while simultaneously ensuring their accountability.”

( Emphases supplied)

1.7 In view of the above, the definition of ‘political nature’,

‘political objective’, ‘political ideology’ are different from the

normal political actions of political parties. NGOs play a

complementary/supplementary part in doing what the State

should ideally do. The only laudable objective of both is to

empower people as against poverty, illiteracy, homelessness,

discrimination etc. and in the process, if need be, to counter

Government policies, laws, political decisions etc.

1.8 The consequences of withdrawal of foreign contribution

registration on an NGO/civil society is very serious. The civil

and evil consequences of cancellation of foreign contribution

registration could be that not only persons who are employed

with the NGO or civil society will lose their employment but it

will have an adverse effect on the activities done by the

organisation namely, those working for upliftment of poor,

farmers, fighting against discrimination of women, for

protection of environment and for establishing the democratic

rights of the people etc.

1.9 The impugned provisions give the Central Government a

blanket power to pick and choose from NGOs/CSOs anyone

whom they don’t want to function due to their strong

opposition, which they demonstrate through constitutionally

permissible methods. This is where the entire problem lies.

The Government’s power to pick and choose, discriminate, act

arbitrarily by abusing powers given under the Act, is quite

obvious.

2. Why Section 5 of the 2010 Act is unconstitutional?

Section 5 of the 2010 Act states that,

“5. Procedure to notify an organisation of a political

nature.

(1) Th e Centra l Governmen t ma y , havin g regar d t o th e activitie s

o f th e o r ganisation o r th e ideolog y propagate d b y th e organi -

satio n o r th e programm e o f th e organisatio n o r the associa -

tio n o f th e o r ganisation s wit h th e activitie s o f an y politica l

part y , by an order published in the Official Gazette, specify

such organisation as an organisation of a political nature not

being a political party, referred to in clause (f) of sub-section

(1) of section 3:

Provided that the Central Government may, by rules made

by it, fram e th e guidelines specifyin g th e groun d o r ground s

o n whic h a n organisatio n shal l b e specifie d a s an organisa -

tio n o f a politica l nature .

(2) Before making an order under sub-section (1), the Central

Government shall give the organisation in respect of whom

the order is proposed to be made, a notice in writing inform-

ing it of the ground or grounds, on which it is proposed to be

specified as an organisation of political nature under that

sub-section:

(3) The organisation to whom a notice has been served under

sub-section (2), may, within a period of thirty days from the

date of the notice, make a representation to the Central Gov-

ernment giving reasons for not specifying such organisation

as an organisation under sub-section (1):

Provided that the Central Government may entertain the

representation after the expiry of the said period of thirty

days, if it is satisfied that the organisation was prevented by

sufficient cause from making the representation within thirty

days.

(4) The Central Government may, if it considers it appropriate,

forward the representation referred to in sub-section (3) t o

an y authorit y t o repor t o n suc h representation.

(5) The Central Government ma y , afte r considerin g th e represen -

tatio n an d th e repor t of th e authorit y referre d t o i n sub-sec -

tio n ( 4 ) , specify such organisation as an organisation of a po-

litical nature not being a political party and make an order un-

der sub-section (1) accordingly.

(6) Every order under sub-section (1) shall be made within a peri-

od of one hundred and twenty days from the date of issue of

notice under sub-section (2):

Provided that in case no order is made within the said peri-

od of one hundred and twenty days, the Central Government

shall, after recording the reasons therefore, make an order

under sub-section (1) within a period of sixty days from the

expiry of the said period of one hundred and twenty days.

(Emphases

supplied)

2.1 The petitioner submits that the terms used in Section 5 (1),

namely, ‘activities’, ‘ideology’ and ‘programme’ are very vast;

they have not been defined either in the Act or in the Rules.

Such vague expressions are therefore, amenable to abuse

resulting in arbitrary and illegal action. Though Proviso to

Section 5 (1) says that by framing guidelines and specifying

ground/grounds, an organisation shall be specified as an

organisation of a political nature, the Rules do not actually

lay-down any guidelines. The ground / grounds provided in the

Rules are exhaustive in nature but they do not cover all the

situations envisaged by the terms, namely, activities, ideology

and programme. In certain areas, the Rules travel beyond the

main Section 5. It is to be further noted that the term

‘authority’ as mentioned in Section 5 (4) has not been defined

anywhere in the Act or Rules. The discretion has been given to

the Central Government to either forward the representation

to such an authority or not. From Section 5 (5) it is further

clear that the Central Government may consider either the

representation alone or representation along with the report

of the Authority. The discretion given to the Central

Government under Section 5 (4) is without any guidelines;

there is no reason or rationale as to the situations where the

representation will be forwarded to an authority and where it

will not. The nature and character of the authority has not

been defined. It is not clear whether the authority will be

independent of the Central Government. Therefore, Section 5

(4) as far as exercise of discretion by the Central Government

is concerned and as far as the uncertainty about the authority

is concerned, it is violative of Article 14 of the Constitution.

2.2 The petitioner relies on the debates in Parliament, as that is

one of the methods of ascertaining intention of the Parliament

for the purpose of interpretation and understanding of the

legal provisions.

The Foreign Contribution (Regulation) Bill, 2010 [Bill No. CXII-

C of 2006] (hereafter ‘Bill of 2010’) is passed by Rajya Sabha

on 19.08.2010. In the Rajya Sabha, the following important

debates took place:-

Shri M. Rama Jois (Rajya Sabha member from Karnataka)

whose book ‘Legal and Constitutional History of India’ is

prescribed by the Bar Council of India for the law degree,

made the following comments :

“ … Now, I will give an example. What about trade unions?

There are a number of trade unions which are also

registered organisations and about most of the trade

unions we know to which political parties they are affiliated

or belong to. If this sweeping power is given to the Central

Government, the Central Government may say that a trade

union is affiliated to a particular party, therefore, prevent

them from getting foreign contribution. Therefore, my

objection is that this 'political nature' is a very dangerous,

wide and very vague expressions. The Supreme Court has

held if a provision is capable of both use and abuse, then,

it is violative of article 14 of the Constitution. Right from

1958 the Supreme Court in Ramkrishan Dalmia's case has

said that any provision made by the legislation cannot be

such that it is both capable of use as well as abuse. This is

what has happened. Therefore, which is an organisation of

a political nature is left to the sweet will of the Central

Government. Section 5 provides that before making an

order under sub-section (I), the Central Government shall

give the organisation in respect of whom the order is

proposed to be made, a notice in writing informing it of the

ground or grounds, on which it is proposed to be specified

as an organisation of political nature. So, the Government

can issue a notice. It can say, 'your organisation is

considered, in our opinion, an organisation of political

nature, and therefore, we want to prohibit you from getting

foreign contribution.' What do you say, Sir? Then, there is

another interesting provision in Clause 5(2), which says,

'provided the Central Government may by rule specify' etc.

Sir, 5(3) says that the organisation to whom a notice has

been served under sub-section (2), may, within a period of

thirty days from the date of the notice, make a

representation to the Central Government giving reasons

for not specifying such organisation as an organisation

under sub-section (I). The meaning is that the Central

Government will issue notice stating reason to declare an

association as of a political nature. Then they have given

the right of representation. Then what is going to be done

with that representation you see, provided that the Central

Government may entertain. So, the time limit is there,

more time is also given. Sir, subclause 4 is most important.

It says that the Central Government, may, if it considers it

appropriate, forward the representation referred to in sub-

section (3) to any authority to report on such

representation. What is that authority? First of all, it is left

to the decision of the Central Government to refer or not to

refer. Now, even if it decides to refer the representation

given by a particular party or association, then, it can refer

to some authority. Which is that authority, it is not

specified. Then the Central Government may, after

considering the representation and the report of the

authority, etc. So, the Central Government may send it to

some authority and that whatever opinion is given by that

authority is taken into consideration and the Central

Government will take a decision. My submission is you are

doing it without specifying the authority, the status of the

authority to which the representation is to be referred. My

first objection is to power to declare an association of a

political nature is itself dangerous. It is totally going to

destroy the Fundamental Rights under article 19 (1) (C) of

the Constitution. Even trade union activities can be barred

from getting foreign contribution by exercise of this power.

As far as this authority is concerned, the word authority is

also extremely vague. It can be some authority of the

choice of the Government. They can take the report of that

authority and pass the final order. ”(emphasis supplied)

In response to the queries raised by members including Shri

M. Rama Jois and others, Shri P. Chidambaram, Home Minister

said that,

“Sir, many of the things which the hon. Members said have to

be dealt with in the rules. They may appear vague, but any

law, Mr. Rama Jois knows, if you read it without the rules will

appeal to be vague. But, many of the things have to be pro -

vided for in the rules.

Wherever it is necessary, wherever it becomes excessive del-

egation, we have provided it here. But most of the things

have to be done in the rules and guidelines and that is why I

think any law which is drafted will appear to vest a large

amount of discretion. But the rule making power is intended

to control that discretion or power. Many of these will indeed

be dealt with under the rules.

Now, Mr. Rama Jois mentioned clause 5. Clause 5 is already

there in Section 5 of the present Act. You mentioned Clause

9. Clause 9 is already Section 10 in the present Act. These

are not new provisions. These are the provisions which have

been repeated because these are wholesome provisions that

have stood the test of law. 'Political nature', in fact, we have

said that the present law is rather vague. The new law says

on political nature we will lay down guidelines, we will frame

rules, we will issue a show cause notice, and we will give the

reasons why an organisation is being called an organisation

of a political nature. We will get their reply, and then we will

pass an order either of placing them in the category of orga-

nizations of a political nature, and publish that notification. If

it is abused, if it is unreasonable, they know how to challenge

it in the court of law. In fact, we are making it more transpar -

ent, we are making it more rule based and more reason

based.” (emphases supplied)

3. The Foreign Contribution (Regulation) Rules, 2011 (hereafter

‘2011 Rules’) have provided for declaration of an organization

to be of a political nature though it is not a political party.

Rule 3 states that:

“3. Guidelines for declaration of an organization to be of a

political nature, not being a political party.- The central

Government may specify any organization as organization of

political nature on one or more of the following grounds:

(i) Organization having avowed political objectives in its

Memorandum of Association or bylaws :

(ii) any Trade Union whose objectives include activities for

promoting political goals:

(iii) any voluntary action group with objectives of a

political nature or which participates in political

activities;

(iv) front or mass organizations like Students Unions,

Workers’ Unions, Youth Forums and Women’s wing of

a political party;

(v) organization of farmers, workers, students, youth

based on caste, community, religion, language or

otherwise, which is not directly aligned to any political

party, but whose objectives, as stated in the

Memorandum of Association or activities gathered

through other material evidence, include steps

towards advancement of political interests of such

groups;

(vi) any organization, by whatever name called, which

habitually engages itself in or employs common

methods of political action like ‘ bandh ’ or ‘ hartal ’ ,

‘ rasta roko ’ , ‘ rail roko ’ or jail bharo ’ in support of public

causes.”(emphases supplied)

4. The petitioner is challenging Rule 3 (i), (v) & (vi) of the said

Rules as being unconstitutional and ultra vires the Act itself.

The challenges to Rule 3 are based on the following

reasoning:

4.1 These guidelines/grounds are extremely wide, without any

checks and balances and give arbitrary and wide discretion,

which render the said Rule being subjected to misuse and

abuse. These guidelines in the Rules suffer both from

unreasonableness, arbitrariness as well as for not creating a

discernible classification between the political activities and

other social or public activities. They seek to interfere with the

activities of the organisation in important areas of national life

which is impermissible under this Constitution. The Rules 3(i),

3(v) & 3 (vi) are therefore, contrary to the object of the Act of

2010 as well as ultra-vires Articles 14, 19(1)(a), 19(1)(c) and

21 of the Constitution.

Re : RULE 3 (i)

4.2 Under Rule 3(i) of Rules of 2011, the Central Government may

declare on organisation to be of a political nature in case the

organization, in its memorandum of association or byelaws,

has avowed ‘political objective’. The Rule nowhere defines

what is meant by ‘political objective’. In a democracy

governed by the Rule of Law and having a written

Constitution, it is permissible that an organisation or an

individual protests or insists on the government keeping up its

political objective consistent with the Constitution and

Directive Principles. The term ‘political objective’ includes the

governance as well as policies of the Government. Therefore,

if in the memorandum or byelaws of an organization, the

avowed objective is to oppose government policies which

violate the Constitution and Directive Principles, it may be

accused of having a political objective. The said provision is

thus totally unguided, unchecked and confers arbitrary and

unreasonable powers on the Central Government and

therefore, violative of the Article 14, 19 (1) (a), and 19 (1) (c)

of the Constitution.

Re: RULE 3(v)

4.3 Under Rule 3(v) of the Rules of 2011, an organization of

farmers, workers, students, youth based on caste, community,

religion, language or otherwise which is not directly aligned to

any Political party, can be categorized as a political

organization if its objective include steps towards

advancement of political interest of such groups; or activities

gathered through material evidence include steps towards

advancement of political interest of such group.

It is thus clear that if an organization of farmers indulges in an

activity for the purpose of empowering itself for realization of

its human rights/ Fundamental Rights, which may include

political empowerment as well, it may be put under the

category of “organization of a political nature.” The Act of

2010 or the Rules of 2011 do not define what is the meaning

and scope of the expression “political interest.” Under the

International Covenant on Civil and Political Rights, 1967

(hereafter referred to as ‘ICCPR’) of which India is a signatory,

the civil and political rights are treated as part of human

rights. Under the provisions of the Protection of Human Rights

Act, 1993 (hereafter referred to as ‘Act of 1993). ‘Human

Rights’ have been defined under Section 2 (d), which means

the rights relating to life, liberty, equality and dignity of the

individual guaranteed by the Constitution or embodied in the

International Covenants. ‘International Covenants’ is also

defined under Section 2(f) which mean covenant on Civil and

Political Rights (ICCPR) & International Covenants on

Economic Social and Cultural Rights (ICESCR). Therefore, what

has been provided as ‘political right’ in the ICCPR has been

taken to be part of Human Rights. The aim and object of the

Act of 1993 is to promote, protect and implement the civil and

political rights of an individual/organization. It is, therefore,

not understood on what basis for e.g. the farmers’

organization will be termed as political organization to deny

foreign contribution. The denial of foreign contribution will, in

fact, result in infringement of activities of the organization

which are a necessary and inalienable part of democracy and

Rule of Law. Such an action will not be consistent with the

values of a Sovereign democratic republic which recognizes

the right of protest. The said provision, therefore, is violative

of not only Article 14 but also 19(1)(a) & 19(1)(c) of the

Constitution. The power which has been given in the Rules of

2011, therefore, is un-canalized, arbitrary and does not make

a difference between a ‘political activity’ and advancement of

political rights of an organization.

Re: RULE 3(vi)

4.4 Rule 3(vi) of the Rules of 2011, is also unconstitutional for the

reason that if an organization indulges in ‘bandh’, ‘hartal’,

‘rasta roko’, ‘rail roko’, or ‘jail bharo’, which actions are in

support of public causes, it will be termed as “political action”

and such organization will be declared as a political

organization. The term “habitually” is prone to gross misuse

and abuse. In a democracy, some of these actions are

accepted methods of expressing the public grievances. They

are the only tools in the hands of people to show their

disagreement or dissatisfaction with the functioning of the

Government. The said provision also suffers from the vice of

arbitrariness and unreasonableness because by using these

arbitrary guidelines any organization which has indulged in

‘bandh’, ‘hartal’ ‘jail bharo’ etc. will be termed as a political

organization and will be denied foreign contribution. By this

action of the Central Government, the right of a

Citizen/Organization of its democratic right of protest will be

seriously affected. The said provision, therefore, is violative of

Articles 14, 19(1) (a) and 19(1)(c) of the Constitution.

4.5 The Petitioner relies on the following judgments to point-out

that the citizens have a right to protest & express their views

subject to restrictions in the constitution.

Himmat Lal K Shah Vs Commissioner of Police

Ahmedabad [(1973) 1 SCC 227] that,

“Para 31 : It seems to us that it follows from the above

discussion that in India a citizen had, before the

Constitution, a right to hold meetings on public streets

subject to the control of the appropriate authority

regarding the time and place of the meeting and subject

to considerations of public order.

Para 35 : If the right to hold public meetings flows from

Art. 19 (1) (b and Art. 19 (1) (d) it is obvious that the

State cannot impose unreasonable restrictions.

Para 70 : Public meeting in open spaces and public

streets forms part of the tradition of our national life. In

the pre- Independence days such meetings have been

held in open spaces and public streets and the people

have come to regard it as a part of their privileges and

immunities.”

Further, it has been held in Rohtas Industries Ltd Vs

Rohtas Industrial Staff Union [(1976) 2 SCC 82]

“Para 20 :Our constitution guarantees the right to form

associations, not for gregarious pleasure, but to fight

effectively for the redressal of grievances. Our

constitution is sensitive to workers rights. English

history, political theory and life style being different

from Indian conditions where the Father of the Nation

organised boycotts and mass satyagrahas we cannot

incorporate English conditions without any adaptation

into Indian Law.”

4.6 The rights conferred under the ICCPR, among other

covenants, have been accepted as a part of municipal law by

the Supreme Court as they enhance the content of Article 21

of the Constitution. [vide: PUCL Vs UOI and Ors 1997 (3) SCC

433 and Kapila Hingorani Vs. State of Bihar 2003 (6) SCC 1].

Under the Protection of Human Rights Act, 1993 the

provisions of ICCPR have, in fact, been treated as part of

Article 21 of the Constitution. By denying the political

advancement or political expression, an organization’s human

rights which are part of Article 21, have been curtailed.

Similarly, by categorizing certain actions as being political for

the purpose of denying them certain benefits under foreign

contribution, in fact, really amounts to suppression of their

human rights as well as freedom of expression under Article

19(1)(a) of the Constitution. These rules are therefore,

unconstitutional.

5. Sec. 5 gives unfettered discretion which is further enhanced

by the guidelines under Rule 3. This unfettered, undefined

and vague discretion is violative of Article 14 of the

Constitution. Further, in addition, impugned Guidelines

provided under Rule 3 are arbitrary, unjust, unreasonable and

violative of Article 14 of the Constitution. Art. 19(1) (a) (b) & (

c ) is violated as the impugned provisions travel beyond the

reasonable restrictions provided under Art. 19 (2) (3) & (4).

(i) State of W. B. vs. Anwar Ali Sarkar : AIR 1952 SC 75

at 86 – Para 38 (Mahajan J.)

at 90-92 – Para 49 and 50 (Mukherjea J.)

(ii) Shri Ramkrishna Dalmiya vs. Justice Tendulkar

AIR 1958 SC 538 at 548 (Para 12 (iii)

(iii) K.T. Moopil Nair vs. State of Kerala

AIR 1961 SC 552 at 558 (Para 8)

(iv) Maneka Gandhi vs. Union of India 1978 (1) SCC 248.

(v) Smt. Damyanti Naranga vs. The Union of India And Ors.

1971 (1) SCC 678

(vi) Kameshwar Prasad and Ors . Vs. State of Bihar and Anr ,

AIR 1962 SC 1166 at 1170 (Para 13)

FILED ON: 17.8.2011