NOEL HARPER & ORS. versus UNION OF INDIA & ANR.

Citation: [2022] 19 S.C.R. 879 · Decided: 08-04-2022 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Disposed off

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Judgment (excerpt)

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NOEL HARPER & ORS.
v.
UNION OF INDIA & ANR.
(Writ Petition (Civil) No. 566 of 2021)
APRIL 08, 2022
[A. M. KHANWILKAR, DINESH MAHESHWARI AND
C. T. RAVIKUMAR, JJ.]
Foreign Contribution (Regulation) Act, 2010, as amended by
Foreign Contribution (Regulation) Amendment Act, 2020 – ss. 7,
12(1A), 12A and 17(1) – Constitutional validity of amendments
concerning ss.7, 12(1A), 17 (1) and s.12A – Amended s.7 prohibited
transfer of foreign contribution to other persons while the
unamended s.7 restricted the transfer of foreign contribution, but
did not completely prohibit the same unlike the amended s.7 –
s.12(1A) envisaged that every person making an application under
sub-Section (1) of s.12 was obliged /required to open FCRA account
in the manner specified in s.17 and mention details of such account
in his application – s.17, in particular sub-Section (1) as amended,
mandated that every person granted certificate or prior permission
u/s.12 shall receive foreign contribution only in an account
designated as FCRA account in the specified bank – The unamended
ss.12 and 17 did not impose such restrictions – s.12A inserted vide
the 2020 Act empowered the Central Government to require Aadhaar
number etc., as identification document – Held: The amended
provisions vide the 2020 Act, namely, ss.7, 12(1A), 12A and 17 of
the 2010 Act are intra vires the Constitution and the Foreign
Contribution (Regulation) Act, 2010 – The amended s.7 completely
rules out transfer of foreign contribution by the person who has
received/accepted the same in the first place – That however does
not prevent the recipient from utilising the foreign contribution
“itself” for the purposes for which he has been granted a certificate
of registration or obtained prior permission under the Act – The
restriction inevitably fixes the accountability of the recipient
organisation and mandates maximum utilisation by itself for permitted
purposes – This is the procedure established by law – It can neither
be said to be arbitrary nor discriminatory much less manifestly
arbitrary - within the meaning of Art.14 or impinging upon Art.21
   [2022] 19 S.C.R. 879
879
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SUPREME COURT REPORTS
[2022] 19 S.C.R.
of the Constitution – The pre-amendment dispensation (unamended
s.7) was not sufficient to effectively regulate the acceptance and
utilisation of foreign contribution as predicated by the Foreign
Contribution (Regulation), 2010 – To overcome the mischief and to
enhance transparency and accountability regarding acceptance and
also utilisation of foreign contribution which is quite substantial
every financial year having proliferating effect on the economy of
the nation, it became necessary to enact amended s.7 – The fact
that unamended s.7 was less restrictive, cannot be the basis to test
the constitutional validity of the amended provision on the
touchstone of Art.19(1)(c) or 19(1)(g) or Arts.14 and 21 of the
Constitution – s.12(1A) and s.17(1), is a holistic approach adopted
by the Parliament to provide for strict regulatory measure and for
ensuring transparency and accountability in the matter of foreign
contribution – Being a matter of security of the State, public order
and in the interests of the general public, it is not open to question
the validity of such a law on the touchstone of Art.19(1)(c) or
19(1)(g) of the Constitution – It is not a provision to completely
prohibit forming of the associations or engaging in business of
charity as such – It is a provision for regulating the manner of
doing business more importantly, concerning foreign contribution
– The provision became necessary for efficient regulation of foreign
contribution on real-time basis, hence, it can neither be said to be
manifestly arbitrary nor irrational much less without legitimate
objective of the State – Accordingly, the challenge to these provisions
as being violative of Arts. 14, 19 and 21 of the Constitution is negated
– Insofar as insertion of s.12A is concerned, this amendment had
been necessitated to safeguard the sovereignty and integrity of the
country, and public order, including in the interests of the security
of the State and of the general public – It is not open to argue that
associations desirous of obtaining certificate of registration under
this Act need not furnish official identification document pertaining
to its key functionaries – s.12A is to be read down and construed as
permitting the key functionaries/office bearers of the applican

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