FCRA’s use of vague terms like “public interest” and “national interest” have left it open to abuse

greenpeace
A Greenpeace poster against use of FCRA to curb dissent

Excerpts from India 2016 Human Rights Report for 2016 of the US Department of State, Bureau on Human Rights Practices:

In a statement released on June 16, UN Special rapporteurs on human rights expressed the view that FCRA Foreign Contribution Regulation Act (FCRA) “provisions were increasingly being used…to silence organizations involved in advocating civil, political, economic, social, environmental, or cultural priorities, which may differ from those backed by the Government.” The statement highlighted the suspension of foreign banking licenses for NGOs including Greenpeace India, Lawyers Collective, and the Sabrang Trust.

The law provides for freedom of association. While the government generally respected that right, the government’s increased regulation of NGO activities that receive foreign funding has caused concern. In certain cases, for example, the government required “prior approval” of some NGOs foreign funds, and in other instances declined to renew NGOs’ FCRA registration.

NGOs expressed continued concern regarding the government’s enforcement of FCRA, provisions of which bar some foreign-funded NGOs from engaging in activities the government believed were not in the “national or public interest,” curtailing the work of some civil society organizations. Some NGOs expressed concern over politically motivated enforcement of the act to intimidate organizations that address social issues or criticize the government or its policies, arguing that the law’s use of broad and vague terms such as “public interest” and “national interest” have left it open to abuse. Some multi-national and domestic companies also stated that in some instances the act made it difficult to comply with government-mandated corporate social responsibility obligations due to lengthy and complicated registration processes.

According to media reports, in early November the Ministry of Home Affairs rejected FCRA registration renewals of 25 NGOs, including Lawyer’s Collective and Compassion International’s two primary partners. In addition, some NGOs were placed on a “prior permissions” list, which requires government preapproval of any transfer of funds from abroad. Several NGOs stated these actions threaten their ability to continue to operate in the country.

In April the UN special rapporteur on freedom of assembly and association published a legal analysis asserting that the FCRA did not conform to international law, principles, and standards. In June the UN special rapporteurs on human rights defenders, on freedom of expression, and on freedom of association called on the government to repeal the FCRA.

According to media reports, the government took action to suspend foreign banking licenses or freeze accounts for NGOs on the basis that they received foreign funding without the proper clearances or illegally combined foreign and domestic funding streams, although some human rights organizations reported these types of actions were sometimes used to target specific NGOs.

Most domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. In some circumstances groups faced restrictions. Government officials were generally responsive to NGO requests. There were more than three million NGOs in the country advocating for social justice, sustainable development, and human rights. The government generally met with domestic NGOs, responded to their inquiries, and took action in response to their reports or recommendations. The National Human Rights Commission (NHRC) worked cooperatively with numerous NGOs. Several NHRC committees had NGO representation. Human rights monitors in Jammu and Kashmir were able to document human rights violations, but security forces, police, and counterinsurgents at times reportedly restrained or harassed them.

Representatives of certain international human rights NGOs sometimes faced difficulties obtaining visas and reported that occasional official harassment and restrictions limited their public distribution of materials.

Police charged activists Teesta Setalvad, Javed Anand, Salim Sandhi, Feroz Gulzar, Mohammed Pathan, and Tanvir Jafri with embezzlement after donors claimed Setalvad, founder of Citizens for Justice and Peace (CJP) misused 1.5 million rupees ($22,500) collected to build a memorial to victims of the 2002 Gujarat riots. The Supreme Court granted defendants anticipatory bail after several denials in lower courts in Gujarat. The Gujarat state government froze CJP bank accounts in January 2014 pending the investigation. On August 17, the Supreme Court formally notified the Gujarat government it was seeking a response on a CJP appeal.

In July 2015 the CBI launched a second investigation of Setalvad and Anand for alleged misuse of grants from foreign donors. On March 9, the Supreme Court extended the interim bail to Setalvad and Anand. The activists alleged authorities filed the case in retaliation for their work on behalf of the victims in the Gujarat 2002 riots.

The government continued to restrict access by the United Nations to the northeastern states and Maoist-controlled areas. On August 17, UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein expressed regret at the failure of government authorities to grant UNHCR access to Jammu and Kashmir given “grave concerns about recent allegations of serious human rights violations.”

The NHRC is an independent and impartial investigatory and advisory body, established by the central government, with a dual mandate to investigate and remedy instances of human rights violations and to promote public awareness of human rights. It is directly accountable to parliament but works in close coordination with the Ministry of Home Affairs and the Ministry of Law and Justice. It has a mandate to address official violations of human rights or negligence in the prevention of violations, intervene in judicial proceedings involving allegations of human rights violations, and review any factors (including acts of terrorism) that infringe on human rights. The law authorizes the NHRC to issue summonses and compel testimony, produce documentation, and requisition public records. The NHRC also recommends appropriate remedies for abuses in the form of compensation to the victims of government killings or their families. It has neither the authority to enforce the implementation of its recommendations nor the power to address allegations against military and paramilitary personnel.

Human rights groups claimed these limitations hampered the work of the NHRC. While the NHRC has the authority to initiate investigations and to request state governments submit reports, it has no ability to enforce these requests, press charges, or grant compensation. It cannot investigate human rights violations by the armed forces. Some human rights NGOs criticized the NHRC’s budgetary dependence on the government and its policy of not investigating abuses more than one year old. Some claimed the NHRC did not register all complaints, dismissed cases arbitrarily, did not investigate cases thoroughly, rerouted complaints back to the alleged violator, and did not adequately protect complainants.

Twenty-three of 29 states have human rights commissions, which operated independently under the auspices of the NHRC. In seven states the position of chairperson remained vacant. Some human rights groups alleged local politics influenced state committees, which were less likely to offer fair judgments than the NHRC.

In the course of its nationwide evaluation of state human rights committees, the Human Rights Law Network (HRLN) observed most state committees had few or no minority, civil society, or female representatives. The HRLN claimed the committees were ineffective and at times hostile toward victims, hampered by political appointments, understaffed, and underfunded.

The Jammu and Kashmir commission does not have the authority to investigate alleged human rights violations committed by members of paramilitary security forces. The NHRC has jurisdiction over all human rights violations, except in certain cases involving the army. The NHRC has authority to investigate cases of human rights violations committed by Ministry of Home Affairs paramilitary forces operating under the AFSPA in the northeast states and in Jammu and Kashmir.

Click HERE to download full report

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