India’s FCRA restrictions are not in conformity with international law, principles and standards

mainaUnited Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association Maina Kiai has sent a 17-page report to the Government of India, taking strong exception to the manner in which Foreign Contribution Regulation Act is being used to suppress India’s civil society. Excerpts:

It has come to the attention of the Special Rapporteur on the rights to freedom of peaceful assembly and of association that the accreditation of many organizations under the Foreign Contribution Regulation Act (FCRA) is currently being reviewed. Many civil society organizations (CSOs) in India depend upon this accreditation to access foreign funding. Moreover, they depend upon foreign funding to carry out their operations and assist millions of Indians in pursuing their political, cultural, economic and social rights. The Special Rapporteur urges the authorities of the Union of India to take this analysis into account as it proceeds with the accreditation process.

In addition, several cases are currently pending in different Courts of the Union of India. They regard on the one hand, specific organizations facing operational constraints, limitations and measures imposed upon them under the mentioned law and rules and, on the other hand, challenges to the constitutional validity of stipulations of the Foreign Contributions Regulation Act and Rules of the Union of India. Different state and non-state actors involved in these legal procedures may have an interest in this analysis against international law, standards and principles.

It is against this background that the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association submits this information note to the Government of India. It focuses on two questions of international law, standards and principles: (1) Is access to resources, in particular foreign funding, part of the right to freedom of association under international law, standards and principles and more specifically of the right to form an association? (2) If so, on what basis may States restrict access to foreign funding under international law, standards and principles?

The Special Rapporteur on the right to freedom of peaceful assembly and of association finds that access to resources, including foreign funding, is a fundamental part of the right to freedom of association under international law, standards, and principles, and more particularly part of forming an association. Therefore, any restriction on access to foreign funding must meet the stringent test for allowable restrictions for the right to association developed by the international human rights bodies.

Given this narrow test, restricting access to foreign funding for associations based on notions such as “political nature”, “economic interest of the State” or “public interest” violates the right because these terms or definitions are overly broad, do not conform to a prescribed aim, and are not a proportionate responses to the purported goal of the restriction. Such stipulations create an unacceptable risk that the law could be used to silence any association involved in advocating political, economic, social, environmental or cultural priorities which differ from those espoused by the government of the day.

These restrictions as defined by the Foreign Contribution Regulation Act (2010) and Rules (2011), do not meet the obligations of the Union of India under international law, standards and principles.  Given the above clarification on the reservation made by India, the first question can be dealt with: Is access to resources, in particular foreign funding, part of the right to freedom of association under international law, standards and principles?  Many CSOs, and especially human rights organizations, function as ‘not-for-profit’ entities and therefore depend almost exclusively on external sources of funding to carry out their work. Therefore, ‘undue restrictions on resources available to associations impact the enjoyment of the right to freedom of association and also undermine civil, cultural, economic, political and social rights as a whole.’

After reviewing Egyptian legislation which required non-governmental organizations (NGOs) receiving foreign funding to register with the government, the Committee stated that:

“The State Party should review its legislation and practice in order to enable non-governmental organizations to discharge their functions without impediments, which are inconsistent with the provisions of article 22 of the Covenant, such as prior authorization, funding controls, and administrative dissolution.”

Restrictions on foreign funding create significant barriers for NGOs to function. Because access to foreign funding is a part of the right to association, any restriction must meet the requirements set forth in the International Covenant on Civil and Political Rights (ICCPR), which only permits restrictions on freedom of association under narrowly tailored circumstances. Again, it is instructive to note that the same test is applicable to restrictions on the right to freedom of association as guaranteed in Article 11 of the ECHR and Article 16 of the ACHR.

Where access to foreign funding is restricted or prohibited on the basis of the particular activity of an organization, the law would need to provide a definition that was precise enough to allow such organizations to be on notice. The FCRA defines ‘political nature’ to include:

  • organisation having avowed political objectives in its Memorandum of Association or bylaws;
  • any Trade Union whose objectives include activities for promoting political goals;
  • any voluntary action group with objectives of a political nature or which participates in political activities;
  • front or mass organisations like Students Unions, Workers’ Unions, Youth Forums and Women’s wing of a political party; organisation of farmers, workers, students, youth based on caste, community, religion, language or otherwise, which is not directly aligned to any political party, but whose objectives, as stated in the Memorandum of Association, or activities gathered through other material evidence, include steps towards advancement of political interests of such groups;
  • any organisation, by whatever name called, which habitually engages itself in or employs common methods of political action like ‘bandh’ or ‘hartal’, ‘rasta roko’, ‘rail roko’ or ‘jail bharo’ in support of public causes.

On its face, the FCRA does not provide the necessary precision required for  clarity and notice. It lists examples of groups that could be defined as having a ‘political nature’, but does not provide further definitions or examples for the terms ‘political objectives,’ ‘political activities,’ or ‘political interests.’ This appears to give the government broad discretionary powers that could be applied in an arbitrary and capricious manner.

The definition of ‘political nature’ in the FCRA appears to be overly broad and could encompass almost all potential activities of an organization, including those that are allowed and even encouraged by the ICCPR to exist, such as promoting knowledge of basic rights and participation in government. Further, section 12(4)(f) of the FCRA disqualifies from eligibility to receive foreign funding all those whose actions may be construed as “likely to affect prejudicially… the economic interest of the State” or “public interest”. These terms are not defined in a way that would enable a CSO to know in advance whether its activities could reasonably be construed to be in violation of the Act.

States that restrict access to foreign funding for civil society organizations have tended to argue that such restrictions are necessary for national security or to protect public order. The Human Rights Committee has found that when a State invokes national security and protection of public order as a reason to restrict the right to freedom of association, the State party must prove the precise nature of the threat.

Restrictions on the right to freedom of association based on national security concerns must refer to the specific risks posed by the association; it is not enough for the State to generally refer to the security situation in the specific area. The national security justification is most likely to be seen as a legitimate aim when a CSO / NGO endorses either directly or indirectly, terrorist activities.

Similarly, measures intended to prevent crime and disorder will be deemed to have a legitimate aim where the CSO /NGO calls for violence, crime, or a complete rejection of democratic principles. In this case, the FCRA’s stated purpose is ‘to prohibit acceptance and utilization of foreign contribution or foreign hospitality for any activities detrimental to the national interest.’ This stated purpose is not among those specifically enumerated in the ICCPR.

Economic or public interests are neither one of the enumerated bases for limiting fundamental human right in the ICCPR. National interest or economic interest of the State is not synonymous with national security or public order. The legislation does not clearly define ‘national interest’, ‘economic interest of the state’ or ‘public interest’ and appears to allow the government power to restrict the right to freedom of association for any number of government purposes beyond ‘national security or public security, public order (ordre public), public health or morals, or the protection of the rights and freedoms of others.’

A complete or blanket ban on access to foreign funding for groups engaged in activities of a ‘political nature’ in order to maintain and protect a vague ‘national interest’ does not meet the ICCPR’s proportionality requirement. The same applies to groups engaged in activities which may be determined contrary to the ‘economic interest of the state’ or ‘public interest’.

First, a total ban is never the least restrictive measure available to the State. Second, bans on access to foreign funding can lead to the de facto dissolution of a CSO, particularly those engaged in activities which may challenge vested domestic interests. Indeed, such activities are explicitly protected under the ICCPR, which safeguards the right of associations and individuals to express ideas that are unpopular or critical of the government.

The Human Rights Committee has recognized that such free expression of ideas is necessary to ensure the proper functioning of government and is therefore ‘a cornerstone of a democratic society.’ The Human Rights Committee has said ‘the reference to a ‘democratic society’ in the context of article 22 indicates, in the Committee’s opinion, that the existence and operation of associations, including those which peacefully promote ideas not necessarily favorably viewed by the government or the majority of the population, is a cornerstone of a democratic society.’

Any restriction that renders this right illusory is not permitted. 34. In this case, the broad objective pursued by the FCRA, the broad discretion allowed for the government in applying the law, and the measure of a total ban on access to foreign funding for those CSOs or associations found to be of a ‘political nature’ or acting against economic or national interest by the State is likely to disproportionately impact those associations engaged in critical human rights work, those which address issues of government accountability and good governance, or represent vulnerable and minority populations or views.

Despite its reservation to the ICCPR, the Union of India remains obligated to interpret the right to form an association as defined in its constitution in conformity with international law, standards and principles. Under international law, standards and principles, the right to form an association includes the right to access resources, including foreign funding. Any restriction on accessing funding, including foreign funding, is a restriction on the right to freedom of association and must be evaluated against the legal framework discussed above to meet the narrowly tailored regime developed by the Human Rights Committee.

The Special Rapporteur on the rights to freedom of peaceful assembly and of association finds that the restrictions of the Foreign Contribution Regulation Act and Rules are not in conformity with international law, principles and standards. The Foreign Contribution Regulation Act and Regulations appear to contravene the Union of India’s obligations under the ICCPR to ensure the rights of all under its jurisdiction to free association because it imposes a total ban on associations’ access to foreign funding on vaguely defined grounds for a broad purpose not included in the ICCPR’s enumerated list of legitimate aims.

The Special Rapporteur invites all State and non-state actors in the Union of India to take this analysis into account and encourages the Union of India to uphold its obligations under international law. This analysis is being brought to the attention of the Union of India.

Click HERE for full report

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