# NOEL HARPER & ORS v. UNION OF INDIA & ANR

- **Citation:** [2022] 19 S.C.R. 879
- **Court:** Supreme Court of India
- **Decided:** 2022-04-08
- **Bench:** A. M. Khanwilkar, Dinesh Maheshwari, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/noel-harper-ors-v-union-of-india-anr-36007
- **Pages:** 98

## Headnote

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
A
B
C
D
E
F
G
H
880
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 th

## Text

_Characters 0–39,106 of 234,416. This is a partial read: ask again with offset=39106 for what follows._

A
B
C
D
E
F
G
H
879
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
A
B
C
D
E
F
G
H
880
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 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 s.12A
concerning identification - Constitution of India - Arts. 14, 19(1)(c),
19(1)(g) and 21.
A
B
C
D
E
F
G
H
881
Foreign Contribution (Regulation) Act, 2010 - Foreign
Contribution (Regulation) Amendment Act, 2020 - Legislative
history culminating with the 2010 Act, as amended in 2020 -
Adoption of strict regime for prohibiting "transfer" of foreign
contribution and insistence of "utilisation" thereof by the recipient
himself/itself - Discussed.
Policy - Judicial Review - Scope - Held: It is not for the
Court to consider relative merits of the different political theories
or economic policies including that an economic legislation may be
troubled with crudities, inequities, uncertainties or the possibility
of abuse cannot be the basis for striking it down.
Policy - Just law made by the Parliament - On mere plea of
individual hardships, Court cannot interfere with policy matters.
Legislation - Amended provisions - Role of the Parliament -
Democratic accountability - Judicial review - Held: 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 - 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 review - The Courts however
ought not to adopt a doctrinaire approach in construing the
amended provisions and undermine the legislative intent.
Words and Phrases - Expression "foreign contribution" -
Meaning of - Distinction between foreign contribution and foreign
investment - Held: By its very nature, foreign contribution is a
donation accepted from a foreign source purportedly for definite
cultural, economic, educational, religious or social programme and
to serve the cause of humanity - The expression "foreign
contribution" has been defined in s.2(1)(h) of the 2010 Act to mean
donation, which can be in the form of delivery or transfer made by
any foreign source of any article, currency, security, etc. - Foreign
Contribution (Regulation) Act, 2010 - s.2(1)(h).
Words and Phrases - Transfer and utilization of foreign
contribution - Expressions "transfer" and "utilisation" - Meaning
of - Discussed - Foreign Contribution (Regulation) Act, 2010.
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
A
B
C
D
E
F
G
H
882
SUPREME COURT REPORTS
[2022] 19 S.C.R.
Disposing of the writ petitions, the Court
HELD:
Validity of Section 7 of the Foreign Contribution
(Regulation), 2010, as amended vide the 2020 Act
1. The amended provision completely rules out transfer of
foreign contribution by the person who has received/accepted
the same in the first place. That 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. [Para 44][958-D-E]
2. There is no restriction regarding utilisation of foreign
contribution, leave alone complete prohibition. The rationale of
Section 7 as amended, inter alia, is that the donor (foreign source)
is made fully aware of the definite purposes already declared by
the recipient and permitted by the competent authority and
corresponding obligation upon the recipient regarding utilisation
of the funds itself for stated purposes and none else. [Para 46][959C]
3. The legislative intent for which the amendment has been
effected is to introduce strict dispensation qua the recipient of
foreign contribution to utilise the same "itself" for the purposes
for which it has been permitted as per the certificate of registration
or permission granted under the Act by the Central Government.
In addition, by the same Amendment Act, utilisation of foreign
contribution for administrative purpose by the recipient has been
lowered to twenty per cent only with a view to ensure maximum
spending on the purposes for which the foreign contribution has
been accepted by the recipient having certificate of registration.
Absent such stringent provision, some of the recipient
organisations were reportedly indulging in successive chain of
transfers to other organisations, thereby creating a layered trail
of money and also utilisation of funds towards administrative costs
of successive transfers upto fifty per cent leaving very little funds
for spending on the purposes for which it was permitted. Hence,
providing complete restriction on transfer simplicitor, was the
just option to fix accountability of the recipient organisation and
A
B
C
D
E
F
G
H
883
maximise utilisation for the permitted purposes. Such being the
avowed objective and purpose of the amendment, the challenge
to the amended Section 7 must fail. [Paras 50 and 51][961-H;
962-A-D]
4. The fact that earlier transfer of foreign contribution was
permitted as per the unamended provision, that by itself cannot
be the basis to challenge the validity of the amended provision.
For, it is open to the Parliament to change the benchmark of
restriction 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.
[Para 52][962-D-E]
5. Indubitably, foreign contribution is qualitatively different
from foreign investment. Receiving foreign donation cannot be
an absolute or even a vested right. No one can be heard to claim
a vested right to accept foreign donation, much less an absolute
right. This is 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 socioeconomic 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. [Paras 53 and
54][962-E-F, H; 963-A-C]
6. One fails to understand as to how such a provision
(amended Section 7) can be regarded as discriminatory or so to
say vague or 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 Foreign Contribution (Regulation)
Act, 2010. Thus, there is clear intelligible differentia with a direct
nexus sought to be achieved with the intent of the Foreign
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
A
B
C
D
E
F
G
H
884
SUPREME COURT REPORTS
[2022] 19 S.C.R.
Contribution (Regulation) Act, 2010. 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.
[Para 57][963-H; 964-A-B]
7. The 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
Foreign Contribution (Regulation) Act, 2010, it fulfils the test
predicated in Shayara Bano. 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. [Para 58][964-D-F]
8.1. 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 quarters. 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 Foreign Contribution (Regulation), 2010 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 Foreign Contribution (Regulation), 2010. [Para 59][964F-G; 965-A-B]
A
B
C
D
E
F
G
H
885
8.2. 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. 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. [Para 63][966-DE; 967-G-H]
8.3. 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, including Articles 14 and 21 of the Constitution.
Consistent with this view, the challenge to the amended Section
7 must be rejected on all counts. [Para 65][967-B-D]
8.4. 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
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
A
B
C
D
E
F
G
H
886
SUPREME COURT REPORTS
[2022] 19 S.C.R.
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 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. [Para
66][967-D-H; 968-A-B]
Validity of Section 12(1A) and Section 17(1) of the Foreign
Contribution (Regulation), 2010, as amended vide the 2020 Act
9. Section 12(1A) has been inserted by Act 33 of 2020, which
envisages that every person who makes an application under subSection (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. Once again,
A
B
C
D
E
F
G
H
887
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 of the regime under the unamended provision, the
challenge to such amendment cannot be taken forward. [Paras
68 and 69][968-D-H; 969-A]
10. Section 17 came to be amended in the aftermath of
realisation of clear and discernible lacunae having 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.
[Para 70][969-B-C]
11. 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 noncompliant. A fortiori, it would certainly
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
A
B
C
D
E
F
G
H
888
SUPREME COURT REPORTS
[2022] 19 S.C.R.
justify the need to have a holistic approach to ensure that the
objective of the 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. [Para 71][969-D-H;
970-A-B]
12. 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 review. 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. [Para 72][970-B-D]
13. 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 associations.
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. [Para 73][970-E-G]
14. 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
A
B
C
D
E
F
G
H
889
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). [Para
74][971-A-C]
15. 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. 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 Articles 14, 19 and 21 of the Constitution is negated.
[Paras 75 and 80][971-C-F; 973-E-F]
16. 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
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
A
B
C
D
E
F
G
H
890
SUPREME COURT REPORTS
[2022] 19 S.C.R.
and utilisation thereof for the purposes for which it has been so
permitted. [Para 81][973-F-H]
Validity of Section 12A of the Foreign Contribution
(Regulation), 2010, as amended vide the 2020 Act
17. Section 12A, which was inserted vide the Amendment
Act of 2020, 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 desirous of obtaining certificate of registration under
this Act need not furnish official identification document pertaining
to its key functionaries. [Para 83][974-C-H; 975-A]
18. 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
A
B
C
D
E
F
G
H
891
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. 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 is
unreasonable. Whereas, 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. [Para 84][975-B-D]
Conclusion
19. 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. As regards Section 12A, the
said provision is to be read down and construed 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. [Para 87][975-F-H]
Rustom Cavasjee Cooper v. Union of India (1970) 1
SCC 248 : [1970] 3 SCR 530; R.K. Garg v. Union of
India & Ors. (1981) 4 SCC 675 : [1982] 1 SCR 947;
Ombalika Das v. Hulisa Shaw (2002) 4 SCC 539 :
[2002] 2 SCR 902; Shayara Bano v. Union of India &
Ors. (2017) 9 SCC 1 : [2017] 9 SCR 797; Dr. Ashwani
Kumar v. Union of India & Anr. (2020) 13 SCC 585 :
[2019] 12 SCR 30; Laxmi Khandsari & Ors. v. State of
U.P. & Ors. (1981) 2 SCC 600 : [1981] 3 SCR 92 and
All India Council for Technical Education v. Surinder
Kumar Dhawan & Ors. (2009) 11 SCC 726 : [2009] 3
SCR 859 - relied on.
Shreya Singhal v. Union of India (2015) 5 SCC 1 :
[2015] 5 SCR 963; K.S. Puttaswamy (Retired) & Anr.
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
A
B
C
D
E
F
G
H
892
SUPREME COURT REPORTS
[2022] 19 S.C.R.
(AADHAAR) v. Union of India & Anr. (2019) 1 SCC 1:
[2018] 8 SCR 1 and Anuradha Bhasin v. Union of India
& Ors. (2020) 3 SCC 637 : [2020] 1 SCR 812 -
distinguished.
Indian Social Action Forum (INSAF) v. Union of India
AIR 2020 SC 1363 - clarified.
Public Union for Civil Liberties v. State of T.N. & Ors.
(2004) 12 SCC 381 : [2004] 2 Suppl. SCR 64; K.C.
Gajapati Narayan Deo & Ors. v. State of Orissa AIR
1953 SC 375 : [1954] SCR 1; Maneka Gandhi v. Union
of India & Anr. (1978) 1 SCC 248 : [1978] 2 SCR;
Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors.
(1981) 1 SCC 722 : [1981] 2 SCR 79; Indra Sawhney
& Ors. v. Union of India & Ors. (1992) 3 Supp SCC
217; T.M.A. Pai Foundation & Ors. v. State of
Karnataka & Ors. (2002) 8 SCC 481; Natural
Resources Allocation, In Re, Special Reference No.1 of
2012, (2012) 10 SCC 1 : [1992] 2 Suppl. SCR 454;
Modern Dental College and Research Centre & Ors. v.
State of Madhya Pradesh & Ors. (2016) 7 SCC 353 :
[2016] 3 SCR 579; Navtej Singh Johar & Ors. v. Union
of India (2018) 10 SCC 1 : [2018] 7 SCR 379;
Distribution of Essential Supplies Services During
Pandemic 2021 SCC OnLine SC 339; Teesta Atul
Setalvad v. State of Gujarat (2018) 2 SCC 372 : [2017]
12 SCR 774; Rev. Stainislaus v. State of Madhya
Pradesh & Ors. (1977) 1 SCC 677 : [1977] 2 SCR 611;
Rajeev Suri v. Delhi Development Authority & Ors. 2021
SCC Online 7; State of Himachal Pradesh & Ors. v.
Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra
Sangh (2011) 6 SCC 597 : [2011] 5 SCR 533; Ravindra
Ramachandra Waghmare v. Indore Municipal
Corporation & Ors. (2017) 1 SCC 667 : [2016] 9
SCR 373; State of Himachal Pradesh & Ors. v. Satpal
Saini (2017) 11 SCC 42 : [2017] 1 SCR 658; Union of
India v. Indian Radiological & Imaging Association &
Ors. (2018) 5 SCC 773 : [2018] 3 SCR 649; Peerless
General Finance and Investment Co. Limited & Anr. v.
A
B
C
D
E
F
G
H
893
Reserve Bank of India (1992) 2 SCC 343 : [1992] 1
SCR 406; Premium Granites & Anr. v. State of T.N. &
Ors. (1994) 2 SCC 691 : [1994] 1 SCR 579; Delhi
Science Forum & Ors. v. Union of India & Anr. (1996)
2 SCC 405 : [1996] 2 SCR 767; BALCO Employees'
Union (Regd.) v. Union of India & Ors. (2002) 2 SCC
333 : [2001] 5 Suppl. SCR 511; State of Madhya
Pradesh v. Narmada Bachao Andolan & Anr. (2011) 7
SCC 639 : [2011] 6 SCR 443; Charanjit Lal Chowdhury
v. The Union of India & Ors. AIR 1951 SC 41 : [1950]
SCR 869; The State of Bombay & Anr. v. F. N. Balsara
AIR 1951 SC 318 : [1951] SCR 682; Kathi Raning
Rawat v. State of Saurashtra AIR 1952 SC 123 : [1952]
SCR 435; Gurbachan Singh v. State of Bombay & Anr.
AIR 1952 SC 221 : [1952] SCR 737; The State of
Punjab v. Ajaib Singh & Anr. AIR 1953 SC 10 : [1953]
SCR 254; Habeeb Mohamed v. The State of Hyderabad
AIR 1953 SC 287 : [1953] SCR 661; Kedar Nath
Bajoria v. The State of West Bengal AIR 1953 SC 404
: [1954] SCR 30; Baburao Shantaram More v. Bombay
Housing Board & Anr. AIR 1954 SC 153 : [1954]
SCR 572; Harman Singh & Ors. v. Regional Transport
Authority, Calcutta Region & Ors. AIR 1954 SC 190 :
[1954] SCR 371; Sakhawant Ali v. State of Orissa AIR
1955 SC 166 : [1955] 1 SCR 1004; Budhan Choudhry
& Ors. v. State of Bihar AIR 1955 SC 191 : [1955] 1
SCR 1045; D.P. Joshi v. State of Madhya Bharat & Anr.
AIR 1955 SC 334 : [1955] 1 SCR 1215; Hans Muller
of Nurenburg v. Superintendent, Presidency Jail,
Calcutta & Ors. AIR 1955 SC 367 : [1955] 1
SCR 1284; Kishan Singh & Ors. v. State of Rajasthan
& Ors. AIR 1955 SC 795 : [1955] 2 SCR 531;
P. Balakotaiah v. Union of India & Ors. AIR 1958 SC
232 : [1958] SCR 1052; Shri Ram Krishna Dalmia v.
Shri Justice S.R. Tendolkar & Ors. AIR 1958 SC 538 :
[1959] SCR 279; Express Newspaper (Private) Ltd., &
Anr. v. Union of India & Ors. AIR 1958 SC 578 : [1959]
SCR 12; Khandige Sham Bhat v. Agricultural Incometax Officer, Kasaragod & Anr. AIR 1963 SC 591 :
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
A
B
C
D
E
F
G
H
894
SUPREME COURT REPORTS
[2022] 19 S.C.R.
[1963] 3 SCR 809; Raja Bira Kishore Deb, Hereditary
Superintendent, Jagannath Temple v. The State of Orissa
AIR 1964 SC 1501 : [1964] 7 SCR 32; Ganga Ram &
Ors. v. Union of India & Ors. (1970) 1 SCC 377 :
[1970] 3 SCR 481; Anant Mills Co. Ltd. v. State of
Gujarat & Ors. (1975) 2 SCC 175 : [1975] 3 SCR 220;
Mohan Kumar Singhania & Ors. v. Union of India &
Ors. (1992) 1 Supp SCC 594 : [1991] 1 Suppl. SCR
46; Venkateshwara Theatre v. State of Andhra Pradesh
& Ors. (1993) 3 SCC 677 : [1993] 3 SCR 616; Dharam
Dutt & Ors. v. Union of India & Ors. (2004) 1 SCC
712 : [2003] 6 Suppl. SCR 151; Basheer @ N.P.
Basheer v. State of Kerala (2004) 3 SCC 609 : [2004]
2 SCR 224; O. K. Ghosh & Anr. v. E. X. Joseph AIR
1963 SC 812 : [1963] Suppl. SCR 789; Saghir Ahmad
& Anr. v. State of U.P. & Ors. AIR 1954 SC 728 : [1955]
1 SCR 707; Babulal Parate v. The State of Maharashtra
& Ors. AIR 1961 SC 884 : [1961] 3 SCR 423; Daya v.
Joint Chief Controller of Imports & Exports & Anr. AIR
1962 SC 1796 : [1963] 2 SCR 73; Akadasi Padhan v.
State of Orissa & Ors. AIR 1963 SC 1047 : [1963] 2
Suppl. SCR 691; Municipal Committee, Amritsar & Ors.
v. State of Punjab & Ors. (1969) 1 SCC 475 : [1969] 3
SCR 447; Madhu Limaye v. Sub-Divisional Magistrate,
Monghyr & Ors. (1970) 3 SCC 746 : [1971] 2
SCR 711; Daruka & Co v. Union of India & Ors. (1973)
2 SCC 617 : [1974] 1 SCR 570; Md. Serajuddin &
Ors. v. State of Orissa (1975) 2 SCC 47 : [1975] Suppl.
SCR 169; Municipal Corporation of the City of
Ahmedabad & Ors. v. Jan Mohammed Usmanbhai and
Anr. (1986) 3 SCC 20 : [1986] 2 SCR 700; Sushila Saw
Mil v. State of Orissa and Ors. (1995) 5 SCC 615 :
[1995] 2 Suppl. SCR 426; Krishnan Kakkanth v.
Government of Kerala & Ors. (1997) 9 SCC 495 :
[1996] 7 Suppl. SCR 487; Laxmikant v. Union of India
& Ors. (1997) 4 SCC 739 : [1997] 3 SCR 861; Indian
Handicrafts Emporium & Ors. v. Union of India & Ors.
(2003) 7 SCC 589 : [2003] 3 Suppl. SCR 43; Om
Prakash & Ors. v. State of U.P. & Ors. (2004) 3 SCC
A
B
C
D
E
F
G
H
895
402 : [2004] 2 SCR 900; People's Union for Civil
Liberties & Anr. v. Union of India (2004) 9 SCC 580 :
[2003] 6 Suppl. SCR 860; State of Gujarat v. Mirzapur
Moti Kureshi Kassab Jamat & Ors. (2005) 8 SCC 534
: [2005] 4 Suppl. SCR 582; Kerala Bar Hotels
Association & Anr. vs. State of Kerala & Ors. (2015)
16 SCC 421; K.S. Puttaswamy & Anr. v. Union of India
& Ors. (2017) 10 SCC 1 : [2017] 10 SCR 569; Gobind
vs. State of Madhya Pradesh & Anr. (1975) 2 SCC 148
: [1975] 3 SCR 946; Chintamanrao & Anr. v. The State
of Madhya Pradesh AIR 1951 SC 118 : [1950] SCR
759; The State of Madras v. V.G. Row AIR 1952 SC
196 : [1952] SCR 597; Teri Oat Estates (P) Ltd. v. U.T.,
Chandigarh & Ors. (2004) 2 SCC 130 : [2003] 6 Suppl.
SCR 1235; Ramlila Maidan Incident, In re (2012) 5
SCC 1 : [2012] 4 SCR 971; Sahara India Real Estate
Corporation Limited & Ors. v. Securities and Exchange
Board of India & Anr. (2012) 10 SCC 603 : [2012] 12
SCR 256; Excel Crop Care Limited v. Competition
Commission of India & Anr. (2017) 8 SCC 47 : [2017]
5 SCR 901; A.K. Gopalan v. State of Madras AIR 1950
SC 27 : [1950] SCR 88; and Manohar Lal Sharma v.
Union of India & Ors. [2021] 6 SCR 1006 - referred
to.
Joseph Lochner v. People of the State of New York 198
U.S. 45 (1905); New State Ice Company v. Ernest A.
Liebmann 285 U.S. 262 (1932); West Coast Hotel
Company v. Ernest Parrish 300 U.S. 379 (1937); United
States of America v. Carolene Products Company 304
U.S. 144 (1938); American Federation of Labor,
Arizona State Federation of Labor et al. v. American
Sash & Door Company et al. 335 U.S. 538 (1949) and
Ferguson v. Skrupa 372 U.S. 726 (1963) - referred
to.
Case Law Reference
[2018] 8 SCR 1
distinguished
Para 2 (d)
[2004] 2 Suppl. SCR 64
referred to
Para 3 (a)
NOEL HARPER & ORS. v. UNION OF INDIA & ANR.
A
B
C
D
E
F
G
H
896
SUPREME COURT REPORTS
[2022] 19 S.C.R.
[1954] SCR 1
referred to
Para 3 (b)
[1978] 2 SCR 621
 referred to
Para 3 (b)
[1981] 2 SCR 79
referred to
Para 3 (b)
(1992) 3 Supp SCC 217
referred to
Para 3 (b)
(2002) 8 SCC 481
referred to
Para 3 (b)
[1992] 2 Suppl. SCR 454
referred to
Para 3 (b)
[2016] 3 SCR 579
referred to
Para 3 (b)
[2017] 9 SCR 797
relied on
Para 3 (b)
[2018] 7 SCR 379
referred to
Para 3 (b)
[2020] 1 SCR 812
distinguished
Para 3 (b)
AIR 2020 SC 1363
clarified
Para 3 (b)
[2017] 12 SCR 774
referred to
Para 4 (a)
[1977] 2 SCR 611
referred to
Para 4 (a)
[1981] 3 SCR 92
relied on
Para 5 (l)
[2009] 3 SCR 859
relied on
Para 5 (l)
[2011] 5 SCR 533
referred to
Para 5 (p)
[2016] 9 SCR 373
referred to
Para 5 (p)
[2017] 1 SCR 658
referred to
Para 5 (p)
[2018] 3 SCR 649
referred to
Para 5 (p)
[2019] 12 SCR 30
relied on
Para 5 (p)
[1970] 3 SCR 530
relied on
Para 5 (q)
[1982] 1 SCR 947
relied on
Para 5 (q)
[1992] 1 SCR 406
referred to
Para 5 (q)
[1994] 1 SCR 579
referred to
Para 5 (q)
[1996] 2 SCR 767
referred to
Para 5 (q)
[2001] 5 Suppl.