The tribulations and torment of Joseph K in Franz Kafka’s The Trial is set in a dystopian nightmare where a bullying police, unclear, yet draconian laws and a bewilderingly confusing judicial process work to relentlessly break one man’s mind, body and spirit. It also seems to have inspired the persons who drafted the Foreign Contribution (Regulation) Act, 2010 (and its predecessor, the Foreign Contribution (Regulation) Act, 1976) — not as a horror to be avoided, but as a model of how the State should implement and apply law.
Whereas governments in the last 25 years have worked hard (and succeeded to some extent) in dismantling the license-permit-quota raj in other sectors of the economy, when it comes to foreign contributions, a licence-permit-quota raj is seen as the right and proper state of affairs.
Every not-for-profit that seeks to obtain foreign funding for itself must obtain a certificate from the Union Government before it gets such foreign funding. Certain organisations and persons are entirely barred from receiving foreign funding. It is understandable and probably desirable that political parties, election candidates, judges, governments, and members of legislature not accept foreign contributions because of the nature of their duties. But why, pray tell, should a cartoonist of a newspaper not receive 'foreign contribution'? Or for that matter anyone associated with a newspaper or a news channel? When it’s possible for a foreign entity to legitimately own up to 26 percent of a newspaper through the automatic FDI route, what sense does it make to entirely prevent a not-for-profit foreign source from contributing to an Indian newspaper?
This isn’t the only illogical clause of the FCRA. "Organisations of a political nature" are prohibited from receiving foreign funds. Sounds reasonable since the law shouldn’t allow something to be done indirectly to what can’t be done directly.
Except, there’s no definition of what an "organisation of a political nature" is in the law.
FCRA leaves it to the the government to decide on a case by case basis what an "organisation of a political nature" is. There are guidelines indicated in the FCRA Rules, but if you ever wanted to see an example of the textbook definition of a tautology, look no further. According to the guidelines, any organisation, trade union, voluntary action group with political objectives, promoting political goals, engaging in political activities or furthering political interests would be an "organisation of a political nature". Apart from using the term "political" as an adjective to describe multiple nouns and verbs, the guidelines throw no real light on what an "organisation of political nature" is. Only one guideline which covers front organisations for political parties, such as AIDWA, NSUI, ABVP et al is slightly illuminating. The unclear and wide use of the term "political" in the Rules suggest that the guidelines are all but useless to understand who this clause can apply to, and will be applied to anyone and everyone the government chooses.
In a supposedly free and open democracy where the Constitution guarantees universal adult franchise, is there any subject that does not involve politics? When I say politics here, I don’t mean the court intrigue or intra-party intrigue that is passed off or incorrectly referred to as "politics" in India. Whether it is the resolution of the Kashmir issue, or the provision of free and compulsory education, or the ending of manual scavenging, all have a political dimension in so far as they relate to the powerless sections of society seeking to legitimately seek more power in society. They may use the language of human rights or pitch their claim in courts on the basis of constitutional rights but what they are asking for is the government to re-balance the existing status quo in society in some way or the other.
One could perhaps make the argument that even such activities should not be foreign funded at any cost. Fair enough. But that’s not what the FCRA does. It allows the government to pick and choose what sort of "organisations of political nature" are permitted to receive foreign funding and what are not. Although the FCRA gives the process the trappings of natural justice, the absence of any coherent guidelines and the vesting of absolute discretion in the Government to determine what is an "organisation of political nature" leave it open for abuse and misuse, whatever the party in power.
One would have even tolerated a little bit of discretion for the government if it didn’t display such rank hypocrisy when it came to the foreign funding of political parties. When faced with a judgment which held that the BJP and Congress had flouted the FCRA, instead of prompting legal action against these parties, the law was surreptitiously changed, retroactively, to whitewash their illegalities.
On the other hand, any NGO which dares to question the agenda of the government of the day, whether it is the protesters against the Kudankulam nuclear power plant, or Amnesty International or Greenpeace, is branded as the "foreign hand" and the subject of a witch-hunt, using the FCRA to de-fund and de-legitimise the activities of these bodies. Wild conspiracy theories are spun and peddled in public by "sources" and useful idiots as legitimate concerns, and opposing viewpoints are tarnished and brushed aside.
The clumsy and heavy-handed manner in which the NDA-II government operates would make you think that the anti-NGO approach is something unique to it. It isn’t. The original FCRA was introduced by the Congress-led government at the height of the Emergency, persisted with by governments of all hues, and the latest version of the law is a creation of the UPA government which put NGOs at the centre of its policy making. The fact of the matter is that paranoia and suspicion have been institutionalised in government under the FCRA. We don’t even need to speculate where this will lead us to. A live example is playing out before our very eyes in Turkey. A dark and dangerous path lies ahead.
The author is Senior Resident Fellow, Vidhi Centre for Legal Policy. The views expressed in this article are entirely his