A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad observed that the court cannot presume that just because there is a possibility of the FCRA being misused, a body must be created to oversee the Act’s functioning. “Hence, the mere possibility of a law being administered in a manner which may conflict with constitutional requirements does not render it invalid,” it said. “The judiciary is always circumspect in substituting its wisdom with that of the legislature. In light of this, the prayer made by the writ petitioner seeking a direction to constitute an independent Tribunal Committee to oversee the enforcement of FCRA cannot be accepted.”

Appearing for the NGO, advocate Prashant Bhushan said the FCRA fails to meet the objective of restricting political parties from accepting foreign contribution due to the interference of the central government in its functioning.

Holding that the apprehension of the petitioners that the FCRA may be misused is a “bald averment and entirely unfounded”, the court said, “The petitioner has failed to place on record any data indicating the number of political parties which have availed of foreign contribution, and have failed to be penalised under the FCRA. Courts cannot pass a direction only on hypothesis.”

“The entire case of the petitioner is premised on the possibility of a political party, who is also at the helm of affairs at the Centre, abusing the provisions of the FCRA to suppress dissent and receive foreign contributions in its own favour. The instant writ petition is entirely built on surmises and conjectures.”

The court also noted that there was a basic difference between legislative and judicial functions as per the basic structure doctrine, wherein the legislature makes laws, the executive enforces and administers it, and the judiciary tests the validity of legislation formulated by the legislature. It reteirated the view held in several judgments that “courts cannot direct the legislature to frame or enact a law and in a particular manner. Furthermore, it cannot amend a statute or add provisions to the statute, as that too would be tantamount to judicial legislation”.

“Setting up of such tribunals/authorities/committee is purely a policy decision, taken by the Legislature. A direction for setting up a committee or tribunal would effectively be an amendment of the FCRA, which is beyond the scope of judicial review by this court. Hence, an attempt by a judicial body to set up a tribunal is directly in the teeth of the doctrine of separation of powers. In light of this, the direction sought by the Petitioner to set up a Committee or Tribunal to oversee the functioning of the FCRA is unsustainable,” it said.

The court said that evidently the entire case of the petitioner rested on the possibility of the misuse of the FCRA by the political party at the helm of affairs. The court noted that the petitioners apprehend that such misuse may be directed towards hindering the independence of judicial officers, targeting NGOs and stifling dissent. The court also noted the petitioners’ apprehension that due to a conflict of interest, the FCRA may not be effective to curb political parties from accepting foreign contributions.

Dismissing the plea the court observed that setting up of a committee or tribunal is “purely policy decision” and the legislature alone has the power to do this. “If the prayer sought by the petitioner is allowed, it would essentially be an exercise in judicial legislation, and would be beyond the power of judicial review accorded to this court. Due to the aforementioned reasons, this court is not inclined to allow the present petition,” it said.