FCRA: A prominent tactic used by government to suppress criticism of its policies by civil society

Society-Registration-in-India-1050x600An excerpt from the report “Minority Rights Violations in India” by Alliance for Justice & Accountability, consisting of Indian American Muslim Council, Dalit American Coalition, Organization of Minorities From India, TwoCircles and South Asian Solidarity Initiative:

One of the prominent tactics increasingly used by the Indian government to suppress criticism of its policies by civil society organizations is to restrict or outrightly deny them their right to source donations from outside India. In this the government is aided by a draconian law, the Foreign Contributions Regulation Act (FCRA), which was written in 1976 and amended in 2010.

The law prohibits “organizations of a political nature” from receiving funds under, and the government has abused it to label any criticism of its policies and actions as being of this nature, even though political parties are legally allowed to receive foreign funding. Section 5 of the law authorizes the federal government to term an organization as being of a political nature “having regard to the activities of the organization or the ideology propagated by the organization.”

The government has used the broad definition to abuse the law to suspend licenses and launch criminal cases against individuals and organizations. The law limits access to overseas funds for charities as well as missionaries and religious organizations. “[The] government has used it to block funds to hamper the activities of NGOs that question or condemn the government or its policies,” notes the USCIRF report.

The most prominent case of this abuse is that of the activist couple, Teesta Setalvad and Javed Anand, whose two NGOs, Citizens for Justice and Peace and Sabrang Trust, have done pioneering work in Gujarat in bringing to justice ultranationalist Hindus linked to the RSS-BJP who massacred Muslims in the state in 2002. Human rights defenders accuse Mr. Modi of carrying out a vendetta against Ms. Setalvad and Mr. Anand after becoming prime minister.

The government has accused both of violating the FCRA and receiving funds unlawfully. Ms. Setalvad “is renowned for her supportive endeavors” for the Gujarat violence victims, and has been campaigning to seek “criminal charges against Indian officials, including Prime Minister Narendra Modi, for their alleged involvement in the anti-Muslim riots,” the HRW writes. The government also put the New York-based Ford Foundation on a “watch list” as it once funded one of Ms. Setalvad’s projects.

The U.S. Department of State has “raised concerns over the constraints that were put on the Ford Foundation. 122 In May 2015, the U.S. ambassador to India Richard Verma expressed concerns over challenges faced by civil society organizations in India and the “potentially chilling effects” of the regulatory measures focused on NGOs. Yet, in June 2016, the government brazenly cancelled the registration of Sabrang Trust under the FCRA.

In another example of extreme cynicism the Modi Administration shut down India’s largest Dalit NGO, the Navsarjan Trust, alleging that it was inciting caste tensions by speaking out about it. 123 This clampdown followed immediately after the Trust played a leading role in widespread protests by Dalits in Gujarat against cow vigilantes which mobilized tens of thousands.

The government has in fact taken a battering ram to the civil society. In 2015, after it came to power, it cancelled and/or suspended the licenses of approximately 8,000 NGOs under the FCRA, invoking a clause that allows it to reject foreign donations by NGOs where it “is satisfied that the acceptance of foreign contribution… is likely to affect prejudicially… public interest.”

In November 2016, the Ministry of Home Affairs rejected FCRA registration renewals of 25 NGOs, including Lawyer’s Collective, a legal resource NGO run by a former Additional Solicitor General of India, Indira Jaising. In addition, some NGOs were placed on a “prior permissions” list that requires government pre-approval of any transfer of funds from abroad. “Several NGOs stated these actions threaten their ability to continue to operate in the country,” says HRW. The license of Greenpeace India to raise foreign funds was also cancelled, leading to its shutdown.

A legal analysis by the UN special rapporteur on Freedom of Assembly and Association published in April 2015 said 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 India to repeal the FCRA. Their call was triggered by the cancellation of the license of Lawyers Collective.

“We are alarmed by reports that the suspension was politically motivated and was aimed at intimidating, delegitimizing and silencing Lawyers Collective for their litigation and criticism of the Government’s policies,” they said.  “We are also concerned about procedural irregularities surrounding the order, including repeatedly leaked information to the press of suspension notices against the Lawyers Collective months before those were formally served to the NGO.

“We strongly urge the Government to reverse its decision and embrace the invaluable contribution of the two prominent human rights defenders in upholding constitutional values in India,” the experts said. “We encourage the authorities to ensure a safe and enabling environment for human rights defenders and civil society, which play a critical role in holding the Government to account and buttressing the Indian democracy.”

The statement said 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 government has ignored that plea.

Serious criticism has also been leveled by UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association Maina Kiai. “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,” she has written.

“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.”

In March 2017, the government proposed in Parliament to bring a new law, without attempting to amend the FCRA, that would allow unlimited and anonymous foreign funding of political parties. Exactly a year previously, the government had introduced an amendment to the FCRA to legalize funding by foreign entities to political parties, coming into effect retroactively from 2010.

Human rights defenders have alleged that these changes in the laws would make it easier for ultranationalist Hindu groups located outside India to fund further radicalization of the BJP-linked vigilantes that indulge in hate violence against India’s social and religious minorities.

As the government has cracked down on the NGOs, it has never brought the BJP-linked groups, beginning with the RSS and including the VHP and the Bajrang Dal, into its scrutiny. To enable foreign companies to route their funding through Indian subsidiaries, the amended law says such subsidiary would be considered to be Indian companies for funding under FCRA.

Download full report HERE

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