NOEL HARPER & ORS. versus UNION OF INDIA & ANR.
[2022] 19 S.C.R. 879, Supreme Court of India, 2022
Outcome: Disposed off
Segment: Ratio
from higher standard to lower standard or vice versa on the basis of the
exigencies and experience gained during the implementation of the
applicable provision at the relevant time.
53. Indubitably, foreign contribution is qualitatively different from
foreign investment. Receiving foreign donation cannot be an absolute or
even a vested right. By its very expression, it is a reflection on the
constitutional morality of the nation as a whole being incapable of looking
after its own needs and problems. The question to be asked is: “in normal
times”, why developing or developed countries would need foreign
contribution to cater to their own needs and aspirations? Indisputably,
the aspirations of any country cannot be fulfilled on the hope (basis) of
foreign donation, but by firm and resolute approach of its own citizens to
achieve the goal by sheer dint of their hard work and industry. Indeed,
charitable activity is a business. Receiving contribution within India to
do charitable activity can be and is being regulated differently. It is not
possible to have a similar approach relating to foreign contribution from
foreign source. In short, no one can be heard to claim a vested right to
accept foreign donation, much less an absolute right.
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54. We say so because the theory of possibility of national polity
being influenced by foreign contribution is globally recognised. For, foreign
contribution can have material impact in the matter of socio-economic
structure and polity of the country. The foreign aid can create presence
of a foreign contributor and influence the policies of the country. It may
tend to influence or impose political ideology. Such being the expanse of
the effect of foreign contribution coupled with the tenet of constitutional
morality of the nation, the presence/inflow of foreign contribution in the
country ought to be at the minimum level, if not completely eschewed.
The influence may manifest in different ways, including in destabilising
the social order within the country. The charitable associations may instead
focus on donors within the country, to obviate influence of foreign country
owing to foreign contribution. There is no dearth of donors within our
country.
55. Pertinently, the 1976 Act came to be repealed by the 2010
Act, as it had become necessary to do so because of the experience
gained that in the name of foreign contribution, attempts were made by
unscrupulous entities to disturb the economy and sovereignty of our
country. That being the underlying reason, it must follow that the legislative
intent behind the Act and constant effort of the Government and of the
Parliament is to discourage foreign contribution generally, but allow it
for specific definite
purposes mentioned in Section 11 of the Act; and for
which, the person receiving or accepting foreign contribution is obliged
to obtain a certificate of registration under the Act or prior permission,
as the case may be. Further, such person is obligated to comply all the
stipulations attached to the certificate of registration or prior permission,
without any exception.
56. Apparently, receiving “foreign exchange” is itself completely
prohibited and made subject to exceptions provided for in terms of the
Foreign Exchange Management Act, 1999137. On conjoint reading of
the provisions of the 1999 Act and the regulatory mechanism provided
for in the 2010 Act, it is a clear pointer to the strict regime to be followed
by all concerned for allowing inflow of “foreign contribution” (donation)
in the manner prescribed and its utilisation only for definite purposes
permitted by the competent authority.
57. We fail to understand as to how such a provision (amended
Section 7) can be regarded as discriminatory or so to say vague or
137 for short, “the 1999 Act”
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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irrational much less manifestly arbitrary. The restriction therein applies
to a class of persons who are permitted to accept foreign donation for
being utilised by themselves for the definite purposes, without any
discrimination and it is so done to uphold the objective of the Principal
Act. Thus, there is clear intelligible differentia with a direct nexus sought
to be achieved with the intent of the Principal Act. Such strict regime
had become inevitable because of the experience gained by the
concerned authorities over a period of time, including about the abuse of
the earlier dispensation under the unamended provision.
58. The change not only completely prohibits transfer, but also
enhances the efficacy of the foreign contribution by mandating utilisation
thereof by the person granted certificate of registration itself, for the
purposes for which it had been accepted in terms of the certificate of
registration or prior permission granted under the Act, as the case may
be, including upto prescribed administrative expenses. This restriction
inevitably fixes the accountability of the recipient organisation and
mandating 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 Article 14 or impinging upon Article 21 of the Constitution. As a matter
of law, since the
subject Act deals with a distinct class of persons
(accepting/receiving foreign contribution) and it is founded on an
intelligible differentia having object sought to be achieved by the Principal
Act, it fulfils the test predicated in Shayara Bano138. For the same
reason, the amended provision under challenge is neither capricious,
irrational or lacking determining principle, nor suffers from the vice of
excessiveness and being disproportionate.
59. We need to bear in mind that there is presumption that the
Parliament understands and reacts to the needs of its own people as per
the exigencies and experience gained in the implementation of the law.
Mere plea of inconvenience is not enough to attract the constitutional
inhibition. The Courts ought not to adopt a doctrinaire approach in
construing the amended provisions and undermine the legislative intent
of strengthening the regulatory mechanism concerning foreign
contribution. The legislature enjoys considerable latitude while exercising
its wisdom on the basis of inputs collated from different quarters139.
138supra at Footnote No.18
139see Ombalika Das vs. Hulisa Shaw (supra at Footnote No.79)
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There is intrinsic evidence to indicate that the change effected by the
amendments is to serve the legitimate Government purpose and has a
rational nexus to the object of the Principal Act and the amendments,
and that the pre-amendment dispensation (unamended Section 7) was
not sufficient to effectively regulate the acceptance and utilisation of
foreign contribution as predicated by the Principal Act.
60. Reliance placed by the petitioners on the dictum in Shreya
Singhal140 and K.S. Puttaswamy141 to urge that it is open to the Court
to test the amendment on the touchstone of manifestly arbitrary, need
not detain us in light of the conclusion noted hitherto, keeping in mind the
legislative history and the compelling necessity to adopt strict regime for
prohibiting “transfer” of foreign contribution and insistence of “utilisation”
thereof by the recipient himself/itself. For the same reasons, the dictum
in Anuradha Bhasin142 that the underlying consideration of
appropriateness, necessity and the least restrictive measure compliant
law, will also be of no avail.
61. The argument that this Court in the case of INSAF143,while
dealing with the provisions of the 1976 Act had recognised the absolute
right to receive foreign contribution is misplaced and misreading of that
decision. For, the said decision examined the arguments pursued before
the Court in the context of challenge to the validity of Section 5(1) and
5(4) of the 2010 Act and Rule 3(i), 3(v) and
3(vi) of the 2011 Rules as
being violative of Articles 14, 19(1)(a), 19(1)(c) and 21 of the Constitution.
The provisions in Rule 3(v) and 3(vi) were read down to mean that the
expression “political interests” occurring therein be construed to mean
that it would apply only to those organisations which have connection
with active politics or take part in party politics. Strikingly, even in this
decision the Court noted the object sought to be achieved by the 2010
Act. To wit, to ensure that Parliamentary institutions, political associations
and academic and other voluntary organisations as well as individuals
working in the important areas of national life should function in a manner
consistent with the values of a sovereign democratic republic without
being influenced by foreign contributions or foreign hospitality. The Court
went on to observe that long title of the Act makes it clear that the
140 supra at Footnote No.117
141 supra at Footnote No.7
142 supra at Footnote No.21 (paras 154-159)
143 supra at Footnote No.22
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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regulation of acceptance and utilisation of foreign contribution is for the
purpose of protecting “national interests” and to prohibit organisations
of a political nature from receiving foreign contributions.
62. That being the underlying purpose for which the Act has been
enacted, whilst interpretating the amended provisions, we cannot be
oblivious to the concern expressed by the Parliament, about the state of
affairs and the fallout of the implementation of the dispensation enunciated
under the unamended Act. As the Parliament took a well informed and
conscious decision to alter that position — to make it a strict regulatory
regime of not permitting the recipient of foreign contribution to transfer
the funds to third party for the reasons weighed with it, it must follow
that the provision is in the interests of the sovereignty and integrity of the
country, public order and in the interests of the general public.
63. The question posed to us was: whether such restriction can
be said to be reasonable restriction or impinges upon the right of any
person? While examining the issue as to whether the amended provision
is a reasonable restriction, the Court cannot be oblivious to the concern
of the Parliament/Legislature backed by the past experiences including
cancellation of registration of substantial number of registration certificates
after due inquiry and for tangible reasons owing to abuse and misutilisation
of
foreign contribution (donation); and especially when receipt or
acceptance of foreign exchange or be it foreign contribution, is otherwise
understood to be ordinarily prohibited. For, the “foreign exchange” and
more so “foreign contribution” can be received or brought within the
territory of India only as per the dispensation provided for in the municipal
law. There can be no absolute right in that regard. The fact that transfer
was permitted under the unamended Section 7, it does not follow that
the Parliament is not competent to amend that dispensation to make it
more stringent, including to completely prohibit the inflow of foreign
contribution. The amended provision is not to completely prohibit inflow
of foreign contribution, but is a regulatory measure to permit acceptance
by registered persons or persons having prior permission to do so with
condition that they must themselves utilise the entire contribution including
for administrative expenses within the limits provided under Section 8 of
the Act. The subject enactment is essentially conceived in the interests
of public order and also general public as the intent is to prevent misuse
and misutilisation of foreign contribution coming from foreign sources to
safeguard the values of a sovereign democratic republic.
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64. Thus understood, it is a reasonable restriction as it does not
hinder with the right of forming associations as well as to engage in
business of charity. Being a regulatory measure necessitated because
of past experience and to uphold the intent of the Principal Act, insisting
for utilisation, spending of foreign contribution by the recipient itself cannot
be said to be irrational, arbitrary, discriminatory, or unreasonable restriction
as such.
65. The restriction or complete prohibition on transfer to third
party, by no standards deprive acceptance of foreign contribution and
utilisation thereof in the manner permitted for definite purposes, such as
cultural, economic, educational or social programme. Such a provision
must be understood as being procedure established by law in the interests
of the general public and in the interests of sovereignty and integrity of
the country, including public order. Resultantly, there is no infraction even
of Article 19(1)(c) or 19(1)(g) of the Constitution as urged by the writ
petitioners before us, including Articles 14 and 21 of the Constitution.
Consistent with this view, we must reject the challenge to the amended
Section 7 on all counts.
66. For the same reason, the argument of the writ petitioners
about lack of rational nexus with the object sought to be achieved by the
Principal Act much less the Amendment Act, must also fail. The rationale
is of larger public interests and more particularly to obviate
adverse
impact on the economy, public order, sovereignty and integrity of the
country. Such amendment has been necessitated because of the past
experience consequent to implementation of the unamended Section 7
of the 2010 Act. It is so highlighted in the objects and reasons and the
introduction of the Amendment Act. It can also be culled out from the
debates in the Parliament whilst considering the Amendment Bill in the
respective Houses. 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 had become
necessary to enact amended Section 7. In other words, there is a clear
rationale behind the amendment which is consistent with the purpose of
the Principal Act and the object sought to be achieved under the
enactments. The fact that unamended provision was less restrictive,
cannot be the basis to test the constitutional validity of the provision on
the touchstone of Article 19(1)(c) or 19(1)(g) or Articles 14 and 21 of
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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the Constitution. The amended Section 7, being plain and clear and having
nexus with the object sought to be achieved and is necessitated because
of sovereignty and integrity of India or security of the State, public order
and in the interests of the general public. It is unfathomable as to how
the amended provision can be regarded as unconstitutional on any
parameter.
67. It is urged that Rule 24 of the 2011 Rules came to be deleted
with effect from 10.11.2020. This rule enabled the registered organisations
to transfer foreign contribution to any unregistered person in the manner
provided therein. However, in light of amendment to Section 7 prohibiting
transfer of foreign contribution to any person, the need for the dispensation
predicated in Rule 24 had become non-existent. In other words, as per
amended Section 7, there is no need to continue Rule 24 on the statute
book and its continuance for some time would also make no difference
in the wake of express prohibition in amended Section 7 of the 2010 Act.
Validity of Section 12(1A) and Section 17(1)
68. Section 12(1A) has been inserted by Act 33 of 2020, which
envisages that every person who makes an application under sub-Section
(1) of Section 12 is obliged/required to open FCRA account in the manner
specified in Section 17 and mention details of such account in his
application. Section 17, in particular sub-Section (1) as amended,
mandates that every person who
had been granted certificate or prior
permission under Section 12 shall receive foreign contribution only in an
account designated as FCRA account in the specified bank. The
unamended Sections 12 and 17 did not impose such restriction. Notably,
as per the new regime foreign remittances are being received through
SWIFT platform by international banking wherein certain mandatory
fields are required to be captured apart from other details transaction
wise. Further, foreign remittances do not have structured framework,
including disclosures regarding purposes. All these deficiencies will stand
resolved thereby enhancing the monitoring mechanism in real-time basis,
remittance wise by adopting the new dispensation predicated in the
amended provisions.
69. Once again, the need to strictly regulate the inflow of foreign
funds and to oversee utilisation thereof for the purposes for which it has
been received having been recognised and being the rationale behind
the Amendment Act, including owing to the experience regarding abuse
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of the regime under the unamended provision, the challenge to such
amendment cannot be taken forward.
70. There is force in the argument of the respondents that Section
17 came to be amended aftermath realisation of clear and discernible
lacunae had cropped in due to the presence of FCRA accounts of scores
of registered organisations, in different scheduled banks across the
country. The challenge became more pronounced due to doubling of
foreign contribution inflow in the last decade which had impacted the
efficiency of monitoring and achieving the object of the Principal Act.
The amended provision now mandates that FCRA accounts of all the
registered persons/organisations are required to be opened in one
particular branch in the country providing for essential information and
fields, thereby ensuring a complete and transparent check on the inflow
and utilisation of foreign contribution towards a single point source on
real-time basis.
71. The fact that earlier FCRA account could be opened in any
scheduled bank, cannot preclude the Parliament from legislating a law
which requires inflow of foreign contribution in some other manner
specified by law. Merely because the framework of acceptance of
foreign contribution had been changed cannot be the basis to question
the validity of the amended provisions. Introducing change for the
betterment of governance is the prerogative and wisdom of the
Parliament. The FCRA account operators cannot claim right of
continuity
of a deficient and flawed framework. Ordinarily, convenience of business
and persons engaged in doing business must be uppermost in the mind of
the Parliament/Legislature — to effectuate the goal of ease of doing
business. However, the strict regime had become essential because of
the past experience of abuse and misutilisation of the “foreign
contribution” and cancellation of certificates of as many as 19,000
registered organisations on the ground of being grossly non-compliant.
Despite such cancellation of large number of certificates of registration,
until December 2021 there were reportedly 22,762 FCRA registered
organisations presumably compliant with new dispensation. Further, as
many as 12,989 organisations have applied for the renewal of the FCRA
licence between 30.09.2020 and 31.12.2021. And as many as 5,789
organisations had not applied for renewal of FCRA licence, whose FCRA
licence has ceased to be valid. A fortiori, it would certainly justify the
need to have a holistic approach to ensure that the objective of the
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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Principal Act is fulfilled, namely, of strict regulation of the inflow and
utilisation of foreign contribution for the purposes for which it is so
permitted, such as only cultural, economic, educational or social
programme.
72. In fact, the Parliament must be credited with for having taken
recourse to corrective dispensation for eradicating the mischief, which
any sovereign country can ill-afford. The Parliament is supreme and has
a final say in matters of legislation when it reflects on alternatives and
choices with inputs from different quarters, with a check in the form of
democratic accountability and a further check by the Courts which
exercise the power of judicial review144. We find force in the argument
that it had become necessary for the Parliament to step in and provide a
stringent regime for effectively regulating the inflow and utilisation of
foreign contribution. Hence, there had been legitimate goal for amending
the subject provisions of acceptance of funds through one channel.
Concededly, despite the requirement of opening FCRA account in the
designated bank, it is open to the organisation to utilise the amount so
received in the FCRA account through multiple accounts in the scheduled
branches. In that sense, it is a balanced approach.
73. A priori, opening of main FCRA account in the designated
bank as per the law made by the Parliament in that regard, cannot be
brushed aside on the specious argument
of some inconvenience being
caused to the registered associations145. Assuming that some
inconvenience is likely to be caused to few applicants, but the
constitutionality of a statute cannot be assailed on the basis of fortuitous
circumstances and more so when it being only a one-time exercise to
ensure inflow of foreign contribution through one channel only, being a
precondition for grant of permission. There is no restriction regarding
utilisation of the funds only through that (primary) FCRA account. For, it
is open to the recipient to operate multiple accounts in other scheduled
banks for its utilisation.
144 Dr. Ashwani Kumar (supra at Footnote No.47)
145 In Laxmi Khandsari (supra at Footnote No.31) and All  India  Council  for
Technical Education (supra at Footnote No.32), this Court had expounded that on the
plea of individual hardships, Court cannot interfere with policy matters (and in present
cases a just law made by Parliament).
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74. As a matter of law, the validity of the amendments must be
tested on the touchstone of tenets underlying Articles 14, 19 and 21 of
the Constitution. The permission is a precondition for acceptance and
utilisation of foreign contribution. Such persons are a separate class and
engage in specified activity. It cannot be a usual or ordinary business for
everyone and anyone wanting to accept foreign contribution. Permitting
inflow of foreign contribution, which is a donation, is a matter of policy
of the State backed by law. In this case, it is governed by the 2010 Act
as amended. It is open to the State to have a regime which may
completely prohibit receipt of foreign donation, as no right inheres in the
citizen to receive foreign contribution (donation).
75. The provision such as Section 12(1A) and Section 17(1)
introduced by the Amendment Act, 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.
Notably, there was unanimity amongst the members of both the Houses
cutting across party lines to have such a strict regime as indiscriminate
receipt/inflow and more so utilisation of foreign contribution had been
threatening the sovereignty and integrity of the country itself. 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 Article 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.
76. Opening of main FCRA account in the designated bank, as
has been rightly contended by the respondents, is only a one-time exercise
and for which instructions and protocols have been issued by the
competent authority, not to insist for physical presence for complying
with the formalities. It can be organised even at the local branches of
the designated bank in the manner specified in the instructions issued in
that regard. Moreover, the provision does not prohibit the person/
registered association from opening multiple accounts in other scheduled
banks, wherein the amount received in (primary) FCRA account in
NDMB can be transferred; and from where day-to-day activities can
be then carried on by them. In any case, the designated bank being
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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conscious of its banking obligations and to provide best services to the
registered associations, have issued instructions (Standard Operating
Procedure) for making it convenient to open FCRA account in NDMB
as also to operate the foreign contribution received in such an account.
If any further improvement in the operational convenience is required, it
is open to the petitioners and all other interested persons to request the
designated bank to improve upon such facility. However, merely because
the registered association has been compelled to open FCRA account in
the designated bank at the centralised location for receipt/inflow of foreign
contribution from foreign source, it does not follow that such a
requirement would be manifestly arbitrary or unreasonable. It is only a
one-time exercise to be complied with for availing the permission
accorded by the Central Government under the Act to be a certified
association or person given permission to receive foreign contribution as
a precondition.
77. The need to have only one entry point for the inflow of foreign
contribution had been viewed by the Parliament as the best option for
regulating the inflow of foreign contribution. This process is expected to
increase the efficiency in continual supervision of the inflow of foreign
contribution on real-time basis by the concerned Authorities and to enable
them to take immediate corrective measures to deal with and pre-empt
the impending threat perceived because of its volume including undesirable
source of remittance. It is not open to the Court to have a second-guess
approach in that regard.
78. In the context of the law made by the Parliament in the interests
of the sovereignty and integrity of the country and security of the State,
public order, as also in the interests of the general public, such a provision
cannot be lightly viewed much less on the specious plea of manifestly
arbitrary. The Parliament in its wisdom had deemed it essential to have
such a provision because of the prevalent discernible circumstances
referred to in the introduction of the Bill.
79. It was vehemently urged that there is lack of infrastructure at
the designated bank and that the bank branch is manned only by 40 odd
personnel. To buttress this plea, reference is made to the observation
made by the Reserve Bank of India — that voluminous data on Foreign
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Remittances will put an extra financial burden on the Bank and increase
its costs including divert focus on monitoring of suspicious transactions.
This argument does not commend to us at all. In digital banking operations,
it is not the head count dispensing physical services that would matter,
but the effectiveness of the software is important. We are also not
impressed by the plea that for organisations located in remote parts of
the country, there would be impediments and for that reason, Section 7
violates test of fairness and reasonableness. In any case, respondent
No.3 (SBI) has on affidavit explained as to the extent of measures taken
for ensuring efficient servicing of FCRA accounts of all the registered
associations/account holders. Respondent No.3 has also assured that if
need arises, suitable corrective measures including to upgrade the
facilities/services would be taken at its end. Suffice it to observe that the
argument under consideration cannot be the basis to doubt the
constitutional validity of the provisions in the form of Section 12(1A) and
Section 17(1), as amended vide the Amendment Act. Needless to
underscore that respondent No.3 has stated on affidavit before this Court
that FCRA accounts opened in its designated branch can be operated
online on real-time basis without the need for physical presence of the
account holder or its officials.
80. Having noted that the provision became necessary for efficient
regulation of foreign
contribution on real-time basis, it can neither be
said to be manifestly arbitrary nor irrational much less without legitimate
objective of the State. Accordingly, we have no hesitation in negating
the challenge to these provisions as being violative of Articles 14, 19 and
21 of the Constitution.
81. The fact that the registered associations were already complying
with the statutory formalities of furnishing of accounts, intimation, audit
and disposal of assets to the satisfaction of the concerned Authorities, it
would not follow that the Parliament/Legislature is denuded of its power
of changing the regulatory mechanism or framework to make it more
effective and to make it real-time regarding the inflow or receipt of
foreign contribution and utilisation thereof for the purposes for which it
has been so permitted. Accepting the argument of the registered
associations would not only be undermining the legislative intent, but
also disregarding the object sought to be achieved by the Principal Act.
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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82. The argument of compelling necessity may have arisen for
our consideration only if we were to find that the dispensation provided
in the amended provisions is in the nature of complete prohibition to
form association or to engage in business. As mentioned earlier, these
provisions are only for effective regulatory measures concerning and
limited to foreign contribution, in the larger public interests, public order,
and more particularly for safeguarding the sovereignty and integrity of
the country. Taking any other view would entail in undermining the
legislative intent and cannot be countenanced.
Validity of Section 12A
83. Reverting to the challenge to the insertion of Section 12A vide
the Amendment Act of 2020, it mandates that the person concerned
who seeks prior permission or prior approval under Section 11, or makes
an application for grant of certificate under Section 12, including for
renewal of certificate under Section 16, to provide as identification
document, the Aadhaar number of all its office bearers or Directors or
other key functionaries. The Statement of Objects and Reasons of the
Amendment Act are testimony about the past experience of abuse of
foreign contribution receipts and spending on activities not connected
with the purposes for which it was so permitted. It had been noticed that
the inflow of foreign contribution had almost doubled between the years
2010 and 2019 and many of the
registered associations had failed to
comply with basic statutory formalities necessitating cancellation of
certificates of registration of more than 19,000 registered organisations.
This is a staggering (substantial) number indicative of gross violations by
large number of registered associations. More so, 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 a law made by the Parliament which
is competent to make such a law concerning the activities related to
foreign donations and more particularly about its acceptance in prescribed
manner and utilisation for the purposes defined in the certificate/
permission granted by the competent authority. It has a legitimate purpose
and nexus sought to be achieved with the objective underlying the Principal
Act and the subject amendment. It is not open to argue that associations
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desirous of obtaining certificate of registration under this Act need not
furnish official identification document pertaining to its key functionaries.
84. Regardless of the above, the provision (Section 12A) envisages
that a copy of the Passport can also be provided as identification document
of all its office bearers or Directors or other key functionaries or Overseas
Citizen of India Card, in case of a foreigner. The underlying purpose of
this provision is merely to identify the key functionaries of the registered
association so that they can be made accountable for violations, if any.
We are of the view that as the Passport in case of a foreigner is accepted
as sufficient identification document, there is no reason why such Passport
of Indian national cannot be relied upon for the same purpose. Thus
understood, the challenge to this provision being unreasonable need not
detain us nor is required to be taken any further. Whereas, we hold that
the provision needs to be construed as permitting furnishing of the Indian
Passport of the key functionaries of the applicant who are Indian nationals,
for the purpose of their identification.
85. Having said this, it is not necessary to dilate on other arguments
pressed into service dealing with matters of privacy or the provisions
under consideration being manifestly arbitrary.
86. For the view that we have taken, we do not wish to dilate on
every single authority cited across the Bar as the view taken by us is
in
no way different than the principle expounded therein.
Conclusion
87. To sum up, we declare that the amended provisions vide the
2020 Act, namely, Sections 7, 12(1A), 12A and 17 of the 2010 Act are
intra vires the Constitution and the Principal Act, for the reasons noted
hitherto. As regards Section 12A, we have read down the said provision
and construed it as permitting the key functionaries/office bearers of the
applicant (associations/NGOs) who are Indian nationals, to produce Indian
Passport for the purpose of their identification. That shall be regarded
as substantial compliance of the mandate in Section 12A concerning
identification.
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]

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SUPREME COURT REPORTS
[2022] 19 S.C.R.
88. Accordingly, Writ Petition (Civil) Nos. 566 and 751 of 2021
are disposed of in the aforementioned terms. Writ Petition (Civil) No.634
of 2021 also stands disposed of. No order as to costs.
Pending application(s), if any, are also disposed of.
Bibhuti Bhushan Bose
Writ Petitions disposed of.
(Assisted by : Preetam Bharti, LCRA)