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TMI Blog2012 (6) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... rohibition to accept foreign contribution.-(1) No foreign contribution shall be accepted by any- (a)candidate for election; (b)correspondent, columnist, cartoonist, editor, owner, printer or publisher of a registered newspaper; (c)Judge, Government servant or employee of any corporation or any other body controlled or owned by the Government; (d)member of any Legislature; (e)political party or office-bearer thereof; (f) organisation of a political nature as may be specified under sub-section (1) of section 5 by the Central Government; (g)association or company engaged in the production or broadcast of audio news or audio visual news or current affairs programmes through any electronic mode, or any other electronic form as defined in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000) or any other mode of mass communication; (h)correspondent or columnist, cartoonist, editor, owner of the association or company referred to in clause (g). Explanation.-In clause (c) and section 6, the expression "corporation" means a corporation owned or controlled by the Government and includes a Government company as defined in section 617 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 if 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) to any authority 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 natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipulates 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 the Legislature in actuality has abandoned its basic legislative power. It is his further submission that though the Rules have been framed, yet they really do not cover the situation envisaged by the terms, namely, activities, ideologies and programmes and, hence, the Rules travel beyond the conferment of power under the main provision making the same ultra vires of the Act. The learned counsel for the petitioner would contend that the term 'authority' which has been mentioned in sub-section (4) of section 5 has nowhere been defined and it is not clear whether the authority would be independent of the Central Government and thereby a state of uncertainty has crept in. It is further argued that the restriction imposed is unreasonable and, therefore, it offends the right to freedom of expression. 7. Criticizing the validity of the Rules, it is contended that the guidelines specified in the Rules are without any checks and balances and confer an arbitrary and wide discretion on the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sphere and the purpose of the Act has a specific object and addresses a concern and, therefore, it does not deserve to be declared ultra vires. 9. First, we shall advert to the issue whether sections 5(1) and 5(4) contravene Articles 14 and 19 of the Constitution of India. Section 3 of the Act provides for prohibition to accept foreign contribution. Sub-section (1)(f) of the said provision covers organisation of a political nature as may be specified under sub-section (1) of section 5 by the Central Government. Section 5 lays down the procedure to notify an organisation of a political nature. Thus, the power flows from section 3(1)(f). Section 5 deals with the procedure to notify. Section 5(1) provides that the Central Government by rules shall frame guidelines specifying the ground or grounds on which an organisation shall be specified as an organisation of a political nature. The main section postulates that while publishing in the Official Gazette specifying an organisation as an organisation of a political nature, due regard shall be given to the activities of the organisation or the ideology propagated by the organisation or the programme of the organisation or the associati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the parameters of abstraction. As we find there is guidance and further grounds have been envisaged to be set out regard being had to the activities and other facets and, hence, it cannot be termed as arbitrary. Thus, the assail under the touchstone of Article 14, is without any substance. 11. The next plank of submission related to attack under Article 19(1)(a) of the Constitution of India. It is submitted by Mr. Parikh that the right to freedom of speech and expression and to voice the grievances of the people has been curbed in an extremely unreasonable manner. The 2010 Act has been brought into existence to consolidate the law to regulate the acceptance and utilization 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 and incidental thereto. The law has been enacted by the Parliament to ensure that the parliamentary institutions, political association and academic and other voluntary organizations as well as individuals working in important areas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so that the object and reasons of the Act is in consonance with the preamble of the Constitution. 13. Tested on the anvil of the aforesaid pronouncement of law, it is extremely difficult to accept the submission of Mr. Parikh that the restrictions imposed are unreasonable as they affect the freedom of speech and expression. What is restricted is acceptance of foreign contribution. There is no prohibition or restriction on voicing the plight or grievances of the marginalized sections of people or to protest as permissible in a democratic body polity under the framework of the Constitution. In this context, we may profitably reproduce a passage from the locus classicus, that is Ram Krishna Dalmiya's case (supra), wherein the Apex Court had laid down many a principle pertaining to class legislation and also the presumption as to the constitutionality of a statutory provision. Looking at the role of a court while dealing with the presumption of constitutionality, the two principles which are relevant for the present purpose are reproduced below : "(e) that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to test the Rule on the aforesaid parameters. We have already scanned the statutory provision. Section 5(1) refers to the activities of the organisation, ideology propagated by the organisation, the programmes of the organisation or the association of the organisation with the activities and having nexus with any political party. The language employed in the Rule uses the words "about political objective", "activities for promoting political goals", "participation in political activities", "front organisation of any political party", "organisation involved in advancement of political interest" and "political actions like 'bandh' or 'hartal', 'rasta roko', 'rail roko' or 'jail bharo' in support of public causes". 19. Reading the Rule as a whole, we really fail to fathom, how it can be urged that it travels beyond the statutory provision. What is urged before us is that the right to raise the voice of the people to advance public causes is curtailed. The provision under section 5(1) carves out an exception when an organisation can be notified and thereafter barred from accepting foreign contribution section 3(1)(f), section 5(1) and Rule 3 have to be read together in harmony. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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