[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]
The Foreign Contribution (Regulation) Act – as the name suggests – regulates the circumstances under which individuals or bodies can accept funding from foreign sources. Section 3(1)(f) of the Act prohibits any “organisation of a political nature” from accepting foreign funds. The power to specify an organisation as a “political organisation” flows from Sections 5(1) and 48; the Central Government, having regard to the “activities”, “ideology”, or “association … with the activities of any political party” can specify that an organisation is of a “political nature.” To further concretise this, the FCRA Rules of 2011 set out a number of guidelines. According to Rule 3 of the 2011 Rules, organisations with “avowed political objectives” in their MoA or bye-laws, Trade Unions promoting “political goals”, action groups with objectives of a “political nature”, organisations aiming to advance “political interests”, and organisations using “common methods of political action … in support of public causes”, can all be declared organisations of a “political nature” under Section 5 of the parent Act.
This composite scheme was challenged in Indian Social Action Forum v Union of India. In a brief judgment, a two-judge bench of the Supreme Court upheld the constitutional validity of the Act and the Rules, but “read down” the last clause of Rule 3 – i.e., 3(1)(f) (“… common methods of political action … in support of public causes”) – to “active politics” or “party politics.” While the narrow reading of these excessively broad provisions is no doubt a good thing, nonetheless, in this post, I will flag three issues with the reasoning of the Court.
A. What is the “Political”
In paragraph 18 of the judgment, the Court notes that “preventing foreign contribution into the political arena is the object sought to be achieved by the Act. Prevention of foreign contributions routed through voluntary organisations which are not connected to party politics is the reason behind introduction of Section 3 (1) (f) and Section 5 of the Act.” Immediately after that, the Court goes on to note that “as the intention of the legislature is to prohibit foreign funds in active politics, an Association with avowed political objectives (i.e. to play a role in active politics or party politics) cannot be permitted access to foreign funds.”
Thus, the Court limits the scope of the use of the word “politics” across the Rules (and not just in Section 3(1)(f)) to “party politics” or “active politics.” Unfortunately, however, the Court fails entirely to define what “active politics” mean (especially as distinguished from “party politics”). What one can glean from the judgment – and especially the Court’s reference to “party politics” in its discussion of the legislative intent, and subsequently – in paragraph 21, the reference to “administration” – is that the purpose of the FCRA is to prevent foreign interference in electoral politics, so that the governance of the country is not affected by foreign interests. In this sense, “active politics” is probably best read alongside “party politics”, and – more broadly – as a prohibition upon organisations that seeks funds for electoral purposes (whether through party politics or otherwise).
If this is the meaning of “active politics”, however, then it should have been clarified. This is especially true because the word “political” is capable of boundlessly wide meaning. Indeed, as feminist thought has shown us over the years, the history of many struggles and movements is the history of attempts to shift the line between that which is “political” (and therefore subject to democratic norms, and ideas of liberty and equality), and that which is “private”. The core problem with the FCRA is the manner in which the word “political” is used throughout the statute and the Rules, without any indication of the work that it is meant to be doing. While “party politics” is at least an identifiable and specific narrowing down of the word, “active politics” has the potential to only multiply the confusion (unless, potentially, it is read in the manner suggested above).
B. Vagueness, Over-Breadth, and Abuse
This reluctance to be specific affects the Court’s judgment throughout, and leads to a serious misstep in paragraph 19, when it is addressing Rule 3(v) (“organisations … addressing political interests.” The Court holds:
We are in agreement that the words ‘political interests’ are vague and are susceptible to misuse. However, possible abuse of power is not a ground to declare a provision unconstitutional.
Unfortunately, this is a basic conceptual error that turns the doctrines of vagueness and over-breadth on their head. When a statute or a rule is attacked on the grounds of “over-breadth” or “vagueness”, the argument is not that it should be struck down because there is a “possible abuse of power.” The argument is that the language of the statute or rule is either broad enough or vague enough so as to encompass both constitutional and unconstitutional application within the terms of that language. The problem is not, therefore, the unconstitutional abuse of the law, but its unconstitutional use. As the Supreme Court of the United States noted in Grayned v Rockford, the judgment that first articulated the vagueness standard with clarity:
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.”
It should therefore be clear that once there is a judicial finding of vagueness of over-breadth, it is that finding itself that provides the reasons for unconstitutionality. The point is, as Grayned points out, that a vague or over-broad statute provides plausible legislative cover for unconstitutional State action. Or, in the words of Chintaman Rao v State of MP, a judgment that this bench does not cite: “so long as the possibility of [a statute] being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.”
C. Reading Down
A final, related point: the Court’s chosen strategy in this case (as indicated above) is to “read down” the word “politics” wherever it is found in the statute and the Rules to “party politics” or “active politics.” I have argued above that the reading down method was inapplicable in this case, as a matter of law. There is, however, a more pragmatic point that needs to be made. The strategy of “reading down” works in a situation where – after the reading down – there are mechanisms to swiftly correct the abuse of law if and when the government continues acting in the same old way, and does not follow the Court’s interpretation of the statute. As we have repeatedly seen, however – and most recently, in the case of sedition – Supreme Court judgments that “read down” legal provisions (and that, effectively, create a gap between what the text appears to mean and what the Supreme Court says it means) that are otherwise clearly unconstitutional – very quickly turn into dead letters. Without the existence of some mechanism to ensure that the “reading down” is actually effective, judgments such as these appear to be bringing the government to account, but their net impact is negligible in terms of enforcement. That is a pragmatic reality that appellate Courts should be taking into account when they fashion remedies in cases of this kind.