Recently the Supreme Court in Indian Social Action Forum v Union of India gave a very important decision on defining the ‘political’. A petition was filed by Indian Social Action Forum (INSAF) challenging certain provisions of the Foreign Contribution Regulation Act (FCRA), 2010 and the Foreign Contribution (Regulation) Rules of 2011 those provisions were Section 3(1) (f), Section 5(1) and Section 5(4) of FCRA and Rule 3 (vi) of Foreign Contribution (Regulation) Rules, 2011.
The provisions which were challenged in the petition are:-
- Section 3 prohibits acceptance of foreign funds by organization of a political nature as categorized by the government.
- Under Section 5 (1), Central Government can publish name of such organizations of political nature which shall not receive any foreign funds.
- A written notice shall be served to such organization. Within 30 days, such organization can make representation before the Central government for cancellation of the order.
- Under Rule 3 of Foreign Contribution (Regulation) Rules, 2011, Central Government can specify any organization as organization of political nature on one or more of the following grounds, that is, specify the grounds of categorization and they are –
- Organization having political objectives in its Memorandum of Association or its bye-laws.
- Any Trade Union whose objectives include activities for promoting political goals.
- Any voluntary action group with objectives of a political nature or which participates in political activities.
- Front or mass organizations like Students Unions, Workers’ Unions, Youth Forums and Women’s wing of a political party.
- Organization of farmers, workers, students, youth based on caste, community, religion, language etc. which is not directly aligned to any political party, but whose objectives or activities include steps towards advancement of political interests of such groups.
- An organization which habitually engages itself in or employs common methods of political action like ‘bandh’ or ‘hartal’, ‘rastaroko’, ‘rail roko’ or ‘jail bharo’ in support of public causes.
The Supreme Court in its judgment has held that the government cannot brand an organization as political to prohibit it from receiving foreign funds under the FCRA, 2010 and the FCRA Rukes, 2011. The Court held that any organization which supports the cause of a group of citizens agitating for their rights without a political goal or objective cannot be penalized by being declared as an organization of a political nature.
Organizations that support public causes by resorting to legitimate means for dissent such as organizing bandhs, hartals, strikes etc. shall not come within the ambit of the ban in terms of the FCRA. Further, a sense of balance has to be drawn between the object that is sought to be achieved by the legislation and the rights of the voluntary organizations to have access to foreign funds. The reason for which the law prevents organizations of a political nature from receiving foreign funds is to ensure that the administration is not prejudiced by foreign funds. Prohibition from receiving foreign aid, either directly or indirectly, by those who are involved in active politics is to ensure that the values of a sovereign democratic republic are protected.
The voluntary organizations which have absolutely no connection with either party politics or active politics should not be denied access to foreign contributions. The Court bounds the range of the use of the word “politics” across the Rules and not just in Section 3(1) (f)) to “party politics” or “active politics”. The Court, however, does not entirely define what “active politics” mean especially as distinguished from “party politics”. Court held that those organizations which channel foreign funds for political parties are strictly prohibited to receive foreign funds under FCRA. Thus, the Court ruled that it only those organizations which have connection with active politics or take part in party politics are covered by Rule 3 (vi) and those organizations which are not involved in active politics or party politics do not fall within the purview of Rule 3 (vi).
The impact of this particular judgment is that the Government cannot arbitrarily categorize any organization which is critical of its workings or schemes as organization of political nature just to prevent their foreign funding under FCRA Rules. Blanket Labeling of the voice of dissent as anti-national or anti-democratic strikes at the very “heart” of the country’s commitment to protect the basic constitutional values which the Supreme Court has upheld. Supreme Court has ruled that right to peaceful protest is a fundamental right guaranteed by the Constitution. A distinguishing feature of the democracy is the platform provided for sincere dissent which should be compressed by any executive action. Not allowing right to protests by any government violates rule of law as it violates the idea of justice, fairness and inclusiveness for all by discriminating on specific grounds.
By allowing direct participation in public affairs where individuals and groups are able to express dissent and grievances, expose the flaws in governance and mandate accountability from state authorities as well as powerful entities makes the very basis of a democracy. Thus, prevention of legitimate dissent does not expose flaws in policy making, schemes and deliverables by the government and this helps the government in misleading its people by giving false information about progress in different sectors.
Hence, it can be concluded from the judgment that the Supreme Court has upheld the right to dissent of the nations of the country without the fear of sanction which may follow in the form of being branded as a political organization which would further result in the organization being deprived of foreign funding which can a very essential factor in the working of that organization. The Court has found a balance between the right of dissent of the people of the country and the values of a sovereign democratic republic.
Intern at Law Portal
College: Vivekananda Institute of Professional Studies, GGSIPU
 2020 SCC OnLine SC 310
“ Defining the Political: The Supreme Court’s FCRA Judgment” by Gautam Bhatia in Chilling effect, Free Speech, Freedom of Association
Author: Akanksha Yadav,
Vivekananda Institute of Professional Studies, GGSIPU