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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.33928 OF 2011

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)

(From the impugned judgment / final order dated 16.09.2011 passed by

the High Court of Delhi in Writ Petition (Civil) No. 5793 of 2011.)

BETWEEN:

POSITION OF THE PARTIES

In theHighCourt

In thisHon bleCourt

Indian Social Action Forum (INSAF),

Through its General Secretary,

A-124/6, Katwaria Sarai,

New Delhi 110016 Petitioner

Petitioner

Versus

The Union of India,

Through its Secretary,

Ministry of Home Affairs,

North Block, Central Secretariat,

New Delhi - 110001 Respondent Respondent

TOTHE HONBLE THE CHIEF JUSTICE OF INDIAAND HIS HONBLE COMPANION JUDGESOF THE SUPREME COURT OF INDIA.

THE SPECIAL LEAVE PETITION OF THE PETITIONER MOST

RESPECTFULLY

SHEWETH:

1. This Special Leave Petition has been filed against the

Final order / Judgment dated 16.9.2011 by which Writ

Petition (Civil) No. 5793 of 2011 filed by the Petitioner

before the High Court of Delhi was dismissed in limine

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without issuing notice to the Respondent. The Writ

Petition under Article 226 of the Constitution was filed by

the Petitioner challenging constitutional validity of

Sections 5(1) and 5(4) of the Foreign Contribution

(Regulation) Act, 2010 (herein after referred to as the

2010 Act) and Rules 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 denying Foreign Contribution. The

petitioner had submitted before the High Court that the

said provision in the Act of 2010 and Rules of 2011 are

violative of Articles 14, 19(1)(a), 19(1)(c) & 21 of the

Constitution. The High Court dismissed the Writ Petition,thereby upholding validity of Sections 5(1) and 5(4) of

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

2011.

2. QUESTIONS OF LAW:

The following questions of law arise for consideration by this

Honble Court:

(i) Whether the High Court was justified in deciding the

question of validity of the impugned provisions of

Foreign Contribution (Regulation) Act, 2010 and

Foreign Contribution (Regulation) Rules, 2011, in

limine, without even asking the Union of India to file

its response?

(ii) Whether the Sections 5(1) and 5(4) of the Foreign

Contribution (Regulation) Act, 2010 and Rules 3(i),

3(v) & 3(vi) of the Foreign Contribution (Regulation)

Rules, 2011 are ultra-vires and violative of Articles

14, 19(1)(a), 19(1)(c) & 21 of the Constitution?

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(iii) Whether the findings given by the High Court on

Constitutional validity of impugned provisions is

legally tenable?

3. DECLARATION IN TERMS OF RULE 4(2):

The Petitioner states that no other petition seeking leave to

appeal has been filed by them against the impugned

judgment and order.

4. DECLARATION IN TERMS OF RULE 6:

The Annexures produced along with Special Leave Petition are

true copies of the pleadings/documents which formed

part of the records of the case in the Courts below

against whose order, the leave to appeal is sought for in

this Petition.

5. GROUNDS:

The Petitioner prefers this petition under Article 136 of the

Constitution of India for Special Leave to appeal, inter

alia, on the following, amongst other, grounds:

A Because the High Court failed to consider Petitioners

submission that in Section 5 (1) of the 2010 Act the

terms activities, ideology and programme have been

used widely; they have not been defined either in the

2010 Act or in the Rules of 2011. Such vague and

undefined expressions are therefore, amenable to abuse

resulting in arbitrary and illegal action. Though, the

proviso to Section 5 (1) of the 2010 Act says that by

framing guidelines and specifying ground/grounds, an

organisation shall be specified as an organisation of a

political nature. The Rules of 2011, in fact do not lay-

down any guidelines for defining the above terms. The

ground / grounds provided in the Rules of 2011 do not

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cover all the situations envisaged by the terms,

activities, ideology and programme. In certain areas

the Rules travel beyond the main Section 5 of the 2010

Act.

B. Because the term authority as mentioned in Section 5

(4) of the 2010 Act has not been defined anywhere in the

2010 Act or Rules of 2011. The discretion has been given

to the Central Government to either forward the

representation to such an authority or not. From Section

5(5) of the 2010 Act 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) of the 2010 Act is

without any guidelines; there is no reason or rationale topoint out as to when the representation will be forwarded

to an Authority and in which case it will not be. 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) of the 2010 Act as far as exercise of its

discretion is concerned and as far as the vagueness of

the Authority is concerned, is violative of Article 14 of the

Constitution. The High Court failed to consider these

submissions. For the purpose of convenient reference

Section 5 of the 2010 Act is quoted below:

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 organisatio n o r th e programm e o f th e organisatio n o r

the associatio n o f th e o r ganisation s wit h th e activitie s o f

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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 on which an organisation shall be specified

as an organisation of a political nature.

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

Government shall give the organisation in respect of whomthe 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:

(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.

(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 to report on such representation.

(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.

(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 therefore,

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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)

(C) Because the petitioner had referred to and relied upon

the debates in Parliament for the purpose of pointing out

that the vagueness of the expression Political Nature

contained in Section 5 of the 2010 Act was accepted by

the Government. The debates in Parliament can be relied

upon for ascertaining intention of the Parliament for the

purpose of interpretation.

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

CXII-C of 2006] (hereafter Bill of 2010) was 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 fromKarnataka) 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 ofthe 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

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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 isanother 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-

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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 isto 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 of

Parliament, 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

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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 10in 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)

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D. Because the High Court did not consider the challenge to

Rules 3 (i), (v) & (vi) of the Rules of 2011 as being

ultravires the 2010 Act itself, besides being

unconstitutional. The said Rules are extremely wide,

without any checks and balances and give arbitrary and

wide discretion, which render the said Rules being

subjected to misuse and abuse. These grounds in the

said 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 the

Constitution. The Rules 3(i), 3(v) & 3 (vi) of the Rules of

2011 are therefore, contrary to the object of the 2010 Act

as well as ultra-vires Articles 14, 19(1)(a), 19(1)(c) and21 of the Constitution. For convenient reference the

Foreign Contribution (Regulation) Rules, 2011 guidelines/

grounds are quoted below:

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;

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(iv) front or mass organizations like Students

Unions, Workers Unions, Youth Forums and

Womens 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 orjail bharo in support of public

causes.(emphases supplied)

E. Because the High Court failed to consider the specific

challenge which was made to Rule 3(i) of Rules of 2011.

Under the said Rule, the Central Government is

empowered to declare on organisation to be a political

nature in case the organization, in its memorandum of

association or byelaws, has avowed political objective.

The said 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

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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 to the Central Government and

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

(c) of the Constitution.

F. Because the High Court failed to consider the challenge

to Rule 3(v) of the Rules of 2011. Under the said Rule, 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 ofpoliticalinterest 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 2010 Act 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

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(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 Articles 19(1)(a) & 19(1)(c) ofthe 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.

G Because the High Court ought to have considered the

impact of Rule 3(vi) of the Rules of 2011 which is drastic

in nature. The said Rule 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

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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.

H. Because the petitioner relied upon the following

judgments in support of its contention that Rule 3(vi) of

the Rules of 2011 is unconstitutional because it prohibits

citizens right to protest and express their views subject

to reasonable restriction provided in the Constitution.

The High Court has referred to these judgments but thereis no consideration of these judgments while discussing

the constitutionality of the impugned Rule.

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

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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.

I. Because the High Court did not consider the wide

amplitude of the expression Political Right. It is

submitted that 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 organizations 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

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expression under Article 19(1)(a) of the Constitution.

These rules are therefore, unconstitutional.

J. Because the High Court did not refer to the document of

Planning Commission of India by which the Planning

Commission wanted to encourage/ empower the

voluntary sector. The Petitioner had submitted that 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. 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 suchas 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.

3.1.2To 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

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categorically safeguard their autonomy, while

simultaneously ensuring their accountability .

( Emphases

supplied)

K. Because the High Court ought to have considered that

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.

L. Because the High Court ought to have considered that it

is natural that organizations working against

discrimination of women and for their empowerment 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

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

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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. These ground realities ought to have been

considered by the High Court while examining

constitutional validity of the impugned provisions.

M. Because the term Political in Nature or Political

Objective should have been distinguished from political

empowerment which is a part of 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 withthe 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? 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.

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N. Because the consequences of withdrawal of foreign

contribution of 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 would

lose their employment but it would 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.

O. Because the impugned provisions give the Central

Government a blanket power to pick and choose from

NGOs/CSOs anyone whom they dont want to functiondue to their strong opposition, which they demonstrate

through constitutionally permissible methods. This is

where the entire problem lies. The Governments power

to pick and choose, discriminate, act arbitrarily by

abusing powers given under the 2010 Act, is quite

obvious. The said power comes from the impugned

provisions and, therefore, they have to be struck down as

unconstitutional.

P. Because the High Court failed to consider that the

unfettered discretion provided under Section 5 of the

2010 Act is further enhanced by the guidelines under

Rule 3 of the Rules of 2011. This unfettered, undefined

and vague discretion is violative of Article 14 of the

Constitution. Further, in addition, impugned Guidelines

provided under Rule 3 of the Rules of 2011 are arbitrary,

unjust, unreasonable and violative of Article 14 of the

Constitution. Art. 19(1) (a) (b) & ( c ) is violated as the

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impugned provisions travel beyond the reasonable

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

(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 Biharand Anr ,

AIR 1962 SC 1166 at 1170 (Para 13)

Q. The Petitioner craves leave to add/amend the grounds, if

required in the interest of justice.

6. GROUNDS FOR INTERIM RELIEF

No grounds for interim relief.

7. MAIN PRAYER:

It is, therefore, most respectfully prayed that this Honble

Court may be pleased to:-

(a) Grant Special Leave to Appeal against the

order/judgment dated 16.9.2011 passed by the

High Court of Delhi at New Delhi in Writ Petition

(Civil) No. 5793 of 2011.

(b) PASS such other and further orders as may be

deemed fit and proper in the facts and

circumstances of the case.

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8. INTERIM RELIEF

No interim relief is prayed for.

Settled by:

Mr. Sanjay Parikh, Advocate

Drawn on: 31 October,

2011.

Filed on: __ November, 2011

Place: NEW DELHI

DRAWN AND FILED BY

(Ms. ANITHA SHENOY)

Advocate for the Petitioner

A-187, Defence Colony, New

Delhi

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) No. ______ OF 2011(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF :Indian Social Action Forum (INSAF) .

Petitioner

Versus

Union of India . Respondent

CERTIFICATE

Certified that the Special Leave Petition is confined only to the

pleadings before the Court whose order is challenged and the

other documents relied upon in those proceedings. No

additional facts, documents or grounds have been taken

therein or relied upon in the Special Leave Petition. It is further

certified that the copies of the documents/annexures attached

to the Special Leave Petition are necessary to answer the

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42

question of law raised in the Petition or to make out grounds

urged in the Special Leave Petition for consideration of this

Honble Court. This certificate is given on the basis of the

instructions given by the petitioner/person authorised by the

petitioner whose affidavit is filed in support of the Special

Leave Petition.

FILED BY

(Ms. ANITHA SHENOY)ADVOCATE FOR THE PETITIONER

NEW DELHIDATED: __ November, 2011

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) No. OF 2011

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 59

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 General Secretary of the Petitioner-Forum in

the above Special Leave Petition. I say that I am aware of the facts

and circumstances of the case and I am competent to swear this

Affidavit on behalf of all the petitioners.

2) I say that the contents of the Special Leave Petition

mentioned in paragraph nos. 1 to 8 on pages to and List of

Dates to are true to my own knowledge as derived from the

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43

records and legal advice received and believed by me to be true. I

further say that the contents of the Special Leave Petition i.e. Prayer

Clause and Certificate are true to my own knowledge. I further say

that the contents I.A.s are true to my knowledge.

3) I say that Annexures P-1 to P- contained in pages to are

true copies of the respective originals and form part of the records

of the Courts below.

DEPONENT

VERIFICATIONVerified that the contents of the above affidavit mentioned in paras

1 to 3 are true and correct and nothing material has been concealed

therefrom.

Verified at New Delhi, on this ____ day of October, 2011.

DEPONENT

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SYNOPSIS

This Special Leave Petition has been filed against the Final order /

Judgment dated 16.9.2011 by which WP (C) No. 5793 of 2011 filed

by the Petitioner before the Delhi High Court was dismissed in

limine. The Writ Petition under Article 226 of the Constitution was

filed by the Petitioner challenging constitutional validity of Section

5(1) and 5(4) of the Foreign Contribution (Regulation) Act, 2010

(herein after 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 denying Foreign Contribution.

The petitioner had submitted before the High Court that the said

provision in the Rules of 2011 are violative of Articles 14, 19(1)(a),

19(1)(c) & 21 of the Constitution. The High Court dismissed the Writ

Petition, thereby upholding validity of Sections 5(1) and 5(4) of the

2010 Act and Rules 3(i), 3(v) & 3(vi) of the Rules of 2011.

LIST OF DATES

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

Societies Registration Act (XXI) of 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

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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 onrepression 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

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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 (hereafter

FCMC Bill 2005 for short), as was presented to

the Cabinet, has been uploaded on the Ministry of

Home Affairs websitefor seeking comments/views

of different stakeholders by 31.07.2005. The said

FCMC Bill 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

seminar

& 25.06.2005 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. A true and correct copy of the said Bill of

2006 is hereto marked and annexed as

ANNEXURE P1.

22.12.2006 In pursuance of the rules relating to the

Department-related Parliamentary Standing

Committees, the Chairman, Rajya Sabha, referred

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E

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

communiqu 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.

31.7.2007 The Committee heard representatives of the

Planning Commission on the compatibility of the

Bill of 2006 vis--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 allowsthem 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 so-

cial problems. It is therefore crucial that all

laws, policies, rules and regulations relating

to VOs categorically safeguard their auton-

omy, 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)

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F

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 dif-

ferent locations. The Government will re-

view 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 Min-

istry (as suggested under para 5.4).

A true copy of the National Policy on Voluntary

Sector, 2007 is hereto marked and annexed as

ANNEXURE P2.

16.7.200717.7.20073.10.2007 The Committee in its sittings heard the views of

Dr. Bimal Jalan, Member of Parliament, Rajya

Sabha and ex-Governor, Reserve Bank of India

(RBI) and representatives of the RBI, State Bank of

India, ICICI Bank, HDFC Bank, Catholic Bishops

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

Dr. Bimal Jalan, Member of Parliament and ex-

Governor of RBI submitted before the Committee

that making the provisions in the 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

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inconsistent with the rights guaranteed by the

Constitution of India.

06.11.2007 The Committee in its sittings heard

representatives of

& 09.01.2008 Planning Commission on the compatibility of the

2006 Bill vis--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 allowsthem to explore alternative paradigms ofdevelopment to challenge social, economicand political forces that may work againstpublic interest and to find new ways tocombat poverty, deprivation and other so-cial problems. It is therefore crucial that alllaws, policies, rules and regulations relatingto VOs categorically safeguard their auton-

omy, while simultaneously ensuring theiraccountability.

Para 4.7: International funding of voluntaryorganizations plays a small, but significantpart in supporting such organizations andtheir work in the country. An organizationseeking foreign funding must be registeredunder the Foreign Contribution (Regulation)Act. This law prescribes stringent screeningnorms that often restrict the ability of VOs

to avail foreign funds. When approved,there are problems like funds must be heldin a single bank account, thus presentingenormous difficulties to VOs working at dif-ferent locations. The Government will re-view the FCRA and simplify its provisionsthat apply to VOs, from time to time, inconsultation with the joint consultativegroup to be set up by the concerned Min-istry (as suggested under para 5.4).

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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). 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 filed as ANNEXURE P-

3 (Colly).

15.05.2008 The Committee took up clause-by-clauseconsideration of

& 16.05.2008 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 Committees 134th Report on the Foreign

Contribution (Regulation) Bill, 2006 was presented

to the Rajya Sabha and laid on the table of Lok

Sabha. A true copy of the said 134th report of the

Committee on Home Affairs is hereto marked and

annexed as ANNEXURE P4.

19.08.2010 The Foreign Contribution (Regulation) Bill, 2010

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

the 2010 Bill) was passed by the Rajya Sabha. In

the Rajya Sabha, the following important debates

took place:-

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I

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

organization and about most of the trade

unions we know to which political parties

they are affiliated or belong to. If thissweeping 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 andabuse, 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

organization of a political nature is left to

the sweet will of the Central Government.

Section 5 provides that before making anorder under sub-section (I), the Central

Government shall give the organization 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 organization of political

nature. So, the Government can issue a

notice. It can say, your organization is

considered, in our opinion, an organizationof 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 organization to

whom a notice has been served under sub-

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J

section (2), may, within a period of thirty

days from the date of the notice, make a

representation to the Central Governmentgiving reasons for not specifying such

organization as an organization 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 mayentertain. So, the time limit is there, more

time is also given. Sir, sub-clause 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 decidesto 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 authorityis 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) I of the Constitution. Eventrade 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

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take the report of that authority and pass

the final order.

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 withoutthe 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 isdrafted 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 presentAct. 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 thereasons why an organization is being called

an organization 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

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are making it more transparent, we are

making it more rule based and more reason

based.

[ Emphasis supplied]

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 received 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. A true and

correct Gazette copy of the Foreign Contribution

(Regulation) Act, 2010 is hereto marked and

annexed as ANNEXURE P5

29.04.2011 The Central Government by Gazette Notification

S.O. 909(E) appointed 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 published

the Foreign Contribution (Regulation) Rules, 2011

vide Gazette notification vide G.S.R. 349(E). The

said rules came into force on the same day as the

2010 Act. Rule 3 is relevant for the purpose of thiswrit 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

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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

Womens 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 oremploys common methods of political

action like bandh or hartal, rasta roko,

rail roko or jail bharo in support of public

causes.

A true and correct copy of the Foreign

Contribution (Regulation) Rules 2011 is hereto

marked and annexed as ANNEXURE P6.

01.05.2011 The Foreign Contribution (Regulation) Act, 2010 &

the Foreign Contribution (Regulation) Rules, 2011

came into force. Consequently, the earlier act,

viz., the Foreign Contribution (Regulation) Act,

1976 was repealed.

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04.08,2011 The Petitioner filed Writ Petition (Civil) No. 5793 of

2011 under Article 226 of the Constitution

challenging the constitutional validity and ultra-

vires nature of Rules 5 (1) & 5(4) of the 2010 Act

and 3 (i), 3(v) and 3(vi) of the Foreign Contribution

(Regulation) Rules, 2011. True copy of the said

Writ Petition (C) No. 5793/2011 along with Index is

hereto marked and annexed as ANNEXURE P7.

11.8.2011 Writ Petition (Civil) No. 5793/2011 came up for

hearing. The same day, High Court heard the

Petitioner and reserved the judgment.

16.9.2011 The High Court dismissed the writ petition,

upholding validity of the impugned provisions. .

11.2011 Hence, the Special Leave Petition against the

judgment and order dated 16.9.2011 passed by

the High Court of Delhi at New Delhi in Writ

Petition (C) No. 5793 of 2011.