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Amnesty sedition case: Vague laws like FCRA can intimidate NGOs that don't toe government line

When I was in law school I remember reading that the police could only hold you for 24 hours before they had to take you to a magistrate. I wondered what would happen if the policeman would release someone on the 23rd hour and arrest them again after 15 minutes. I was obviously being an overzealous first year at the time but today I realise that government intimidation often boils down to how the law is applied rather than the law itself.

The Foreign Contribution Regulation Act of 2010 or the FCRA is a legislation that governs the receipt of foreign donations by Indian NGOs and Indian politicians. It is essentially a Foreign Exchange Control Legislation for NGOs. A law of this kind was first brought about by Indira Gandhi during the Emergency because there were fears of foreign NGOs being used to overthrow the government of India. The law though (like many other laws from the Emergency) stayed on the books until it was replaced in 2010. The new legislation is in some ways more liberal than the original one, in the sense that it provides a time limit within which applications for registration and permission are to be processed and that it allows NGOs receiving foreign money to have more than one bank account.

Amnesty India event in Bengaluru. Twitter/ ‏@AIIndia

Amnesty India event in Bengaluru. Twitter/ ‏@AIIndia

To put it bluntly, the law prohibits politicians, sitting members of Parliament and the State Legislature, public servants and press in India from receiving foreign contributions. It also places restrictions on hospitality provided to these officials by foreigners, in particular, foreign governments. It also requires that organisations in India who receive foreign contributions, register themselves or seek prior permission from the Central government before these donations can be accepted.

The Central government has broad powers in this aspect though. For example, it can exempt donations for a particular purpose from the FCRA as it did in the case of the Swacch Bharat Abhiyaan.

The goal of the FCRA is to track the source foreign money that comes into Indian NGOs, the purpose for which it comes and how it is being spent. For example, an Indian NGO receiving $100 for the express purpose of tree plantation will find it difficult to use the funds for feeding the poor. This way, the Central government can keep a tab on the flow of foreign money into India and make sure it doesn't go for any 'anti-national' purpose.

Like the word 'anti-national', the law is vague and needlessly broad in the power it gives to the government, especially in terms of permission and registration. The FCRA gives the government broad powers to refuse registration or permission or even suspend the registration for or permission of NGOs if it satisfies myriad criteria. These include public interest, funds being used for benami purposes, reasons affecting national security and so on.

It's not the law itself that's a problem. The FCRA has any legitimate uses, but it can also be a tool to intimidate and stifle NGOs in India that don't toe the government line when it comes to certain issues.

This broad power though is why NGOs say the act is used to harass and intimidate them. The act creates a situation where an NGO that relies on foreign donations has its operations subject to the pleasure of the government of the day. At any point the government can invoke the Act and suspend the flow of money to the NGO concerned or the NGO can wake up one morning finding themselves facing sudden inspections.

Organisations like Amnesty International have refused to apply for funding under the Act claiming that it is used to restrict freedom of expression. They only apply for permission on a case by case basis. The argument has only symbolic value though. If the government wants to intimidate a person (any person) there are many ways in which it can do so and it does so. For example, the police in Mumbai on some random evenings can suddenly be at a bar arresting people who blankly stare when asked for a permit. (Maharashtra is a prohibition state, you need a permit to drink) or paanwallas who suddenly find themselves being asked for shops and establishment registration (generally around Diwali).

Most sound laws can eventually be used to intimidate a person. Especially laws like the FCRA which are very broad in scope. However, it's not the law itself that's a problem. The FCRA has many legitimate uses, like it can be used to prevent hate preachers from the Middle East preaching in India, or put a pause on missionary NGOs. But it can also be a tool to intimidate and stifle NGOs in India that don't toe the government line when it comes to certain issues. For NGOs in the area of the Environment and Human Rights (Indian or Foreign, Human Rights and Environmental NGOs worldwide find themselves on the wrong side of governments) though, laws like the FCRA present a draconian obstacle in discharging their functions literally putting them at the mercy of the government of the day.

Greenpeace India was on the receiving end when the Congress government of the day invoked FCRA against the NGO because of its heightened protests against the Kudankulam nuclear power plant in Tamil Nadu. Now it's Amnesty's turn when it comes to Kashmir. The law is good and serves a very useful purpose. Its application though, is often whimsical and in most cases definitely has a clear political motive.

The author is a lawyer and practices law in the Bombay High Court.

Updated Date: Aug 19, 2016 22:44 PM

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