No Punishment Without Justice


The original article was published in Indian Express and can be read here: https://indianexpress.com/article/opinion/columns/no-punishment-without-justice-7701886/


A lawyer writes: The predicament of MoC whose rejection of renewal of FCRA registration ought to entail communication of reasons, stated in media to be “for not meeting eligibility conditions” and over “adverse inputs”, must meet the test of the fairness of the due process of law.


This Article is authored by Advocate Anil Malhotra.


The iconic message, “as long as you did it to one of these My least brethren, you did it to Me,” of the Missionaries of Charity (MoC), says it all. A religious congregation established in 1950 by Mother Teresa reportedly has 5167 religious sisters serving in 139 countries in 760 homes, 244 of which are in India. MoC runs homes for handicapped, lepers, disabled, orphaned, blind, aged, addicts the poor and homeless. Sisters of MoC take vows of chastity, poverty, obedience, and give “wholehearted free service to the poorest of poor.” MoC is in a dilemma.


Renewal of its registration with the Foreign Contribution (Regulation) Act, 2010 (FCRA), permitting it to receive foreign funding has not been approved, leaving it in the doldrums. Annual foreign receipts of MoC are said to be around Rs. 75 crores currently. The Union Home Ministry has in “public interest” extended validity of registration of FCRA registered NGOs not renewed till December 31. However, MoC gets no relief.

FCRA, originally enacted in 1976, was sought to regulate foreign contributions consistent with the values of a sovereign democratic republic. The new FCRA 2010 regulates the utilisation of foreign contributions to prohibit activities detrimental to the national interest. FCRA contains a well oiled regulatory procedure for grant of registration and provides for making reasoned orders for rejection, if prejudicially affecting sovereignty and integrity of India, public interest, security and economic interest, harmony between castes and communities, among other grounds. Suspension of pending registration after recording reasons in writing, cancellation after enquiry upon the reasonable opportunity of hearing, audit of accounts, inspection, search and seizure are well enshrined in FCRA. Non-renewal of FCRA registration requires reasons. Cancellation of FCRA registration is appealable to the High Court. However, rejection orders of non-renewal by the Central Government are not appealable; they can be subject to revision by the central government alone. The predicament of MoC whose rejection of renewal of FCRA registration ought to entail communication of reasons, stated in media to be “for not meeting eligibility conditions” and over “adverse inputs”, must meet the test of the fairness of the due process of law. A fair hearing by an adjudicatory authority to provide equality of law and ensure equal protection of laws is the hallmark of justice. A revision petition of such punitive orders before the Central Government against an order of the Central Government does not meet the test of law. However, the Constitution of India steps in to provide a judicial review.

Supreme Court in landmark judgments has held that administrative decisions, contractual or statutory between parties over decades, must entail procedures that are reasonably fair and just. Judicial review applies to prevent arbitrariness or favouritism when contractual powers are exercised by the government. Illegality or irrationality of a decision, procedural judicial impropriety or violation of fundamental rights, invites court intervention in writ jurisdiction. The anvil is fairness, equality, justice and non-discrimination. We are a sovereign, socialist, secular, democratic republic providing freedom of conscience besides free profession, practice and propagation of religion subject to public order, morality and health. India has no state religion. The constitution guarantees religious denominations, freedom to manage religious affairs and the right of minorities to establish and administer educational institutions.

In this time and realm today, MoC with its benevolent and life-saving acts of providing homes, shelter, care to the have-nots is religion-free. Thousands of dependents of MoC fully reliant on it for survival cannot be left at lurch. Not renewing the registration at the pinnacle of its expiry only goes to indicate intentions of the government which may require judicial introspection. The process of non-renewal itself, if bereft of legitimate reasons, may require a judicial eye. The procedure is a handmaiden of justice. Soul searching of implementation of the process of law requires that any interpretation which eludes substantial justice deserves to be set aside. It is arbitrary and discriminatory.

In a scenario where religious tolerance is beginning to find weak feet, the purse ought not to be tweaked for crippling humanitarian causes of religious denominations. The compassionate good must outweigh political scores. MoC as an institution has always achieved international fame. If the FCRA registration of MoC requires investigation, a fair process of law ought to be followed for review. Using the long arm of law administratively to cripple its working by subverting the process of justice, will defeat the public good and cause irreparable harm to those surviving in the institutions of MoC on charity. If the FCRA is used as a crutch and not as a weapon to cripple, it may be in order. The charity has humanity only, and no religion caste or creed. It cannot be disabled.