The National Democratic Alliance (NDA) government has cancelled Foreign Contribution Regulation Act (FCRA) licences of about 20,000 non-profit government organisations (NGOs) ever since it came to power in May 2014. The home ministry, which took the action, has justified it saying these organisations were technically violating various provisions of the Act.
Cancellation of license would mean that these NGOs are no longer eligible to receive foreign funds. It should be noted that several of these NGOs are involved in rights-based advocacy work, especially working in the domain of human rights.
A plethora of civil society organisations have issued statements against this mass cancellation of FCRA licences stating that this is nothing but an 'abuse of legal procedures'.
They also "unequivocally condemned the present use of the FCRA as a tool of repression by the current government".
Organisations such as Greenpeace India, Amnesty International India, TARSHI Delhi and the Centre for Social Justice were all signatories to this statement.
Even the National Human Rights Commission has issued a notice to the home ministry on the issue.
"Prima facie it appears FCRA licence non-renewal is neither legal nor objective and thereby impinging on the rights of the human rights defenders in access to funding, including foreign funding," the apex human rights watchdog in the country said in the notice.
The FCRA is an intimidating law, especially since the original Act came into force in 1976 during the Emergency by the Indira Gandhi-led government. The Act, at that time, prohibited MPs, electoral candidates, political parties, judges from accepting foreign contributions.
Even "correspondents, columnist, cartoonist, editor, owner, printer or publisher of a registered newspaper" were included in the ambit of the definition of candidate under the Act. The objective was certainly to remove all voices of political dissent, though the ostensible legislative intent suggested that the law was to restrain foreign intervention from internal, domestic matters.
The new FCRA, amended by the Finance Bill 2016, has many changes that render it more severe than its predecessor.
For one, the registration under the previous FCRA was permanent; the present law has altered this, mandating that FCRA licences would expire after five years.
A renewal process would mean that prescribed authorities, that is the State, would have arbitrary power to decide whether an NGO can renew its licence afresh.
The new law also puts a 50 percent restriction on the proportion of foreign funds, thereby controlling the way an NGO spends its money.
Another change, and perhaps a significant one, is that the 1976 law targetted political parties. The new law, however, aims at "organisations of a political nature".
The FCRA Rules, 2011, drafted by the United Progressive Alliance government, defines what "organisations of a political nature" may include - farmers' organisations, students' unions, trade unions, workers' unions, youth forums, women's wing of political parties, youth organisations based on caste, community, religion, language and "any organisation... 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". The list is astonishing as it clearly targets people and organisations that want to critique, censure and challenge present political discourse.
It is absolutely appalling that the government would amend the legislation in a way that all "organisations of a political nature" are rendered powerless, while political parties are vindicated for prior violations of the law.
In 2014, the Delhi High Court indicted both the Bhartiya Janata Party (BJP) as well as the Congress of receiving foreign funds in violation of provisions of Foreign Contribution (Regulation) Act (FCRA).
The verdict came after a public interest litigation (PIL) was filed by the Association for Democratic Reforms. A division bench comprising justice Pradeep Nandrajog and justice Jayant Nath asked the government and the Election Commission (EC) to act against the two political parties for accepting foreign funds from Vedanta subsidiaries.
The question, at this juncture, is why is the government apprehensive of NGOs whose work is to democratically interrogate so that constitutional rights and freedoms are not violated. Another question is whether the FCRA is indeed a tool of repression as civil society organisations have declared?
In April 2015, a legal analysis was developed by the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association.
It stated that FCRA norms and regulations "are not in conformity with international law, principles and standards". The FCRA violates the right to freedom of association, an integral freedom incorporated within the International Covenant on Civil and Political Rights, to which India is a party.
The right, though not absolute, are amenable to reasonable restriction; however, the analysis suggests that restrictions such as "public interest" and "economic interest" invoked under the FCRA cannot be termed as legitimate restrictions as they are too ambiguous and may give rise to arbitrary and discretionary powers.
Therefore, should the FCRA be repealed? Perhaps not, as regulation of NGO funding is a significant matter. However, curbing the voices in the civil society by way of a colourable legislation is unacceptable and simply put, draconian.
Updated Date: Oct 26, 2018 12:26:38 IST