Greenpeace suspension: This time Rajnath may have better ammo against NGO

The news that the Centre has temporarily suspended the registration of Greenpeace India Society under the Foreign Contributions Regulation Act 2010 (FCRA) has energised activists, who are now up in arms decrying yet another act against the NGO. Greenpeace India tweeted that a campaign was being waged against dissent and that its fight for the environment would not stop.

It also pointed out how the Delhi High Court's recent ruling in Greenpeace's favour had termed the government's harassment of it as "arbitrary, illegal and unconstitutional".

Greenpeace's description of the Delhi High Court ruling of January 2015 is exaggerated and misconstrued; excerpts from the judgment provide an indication that the Centre has finally collected enough evidence in its crackdown on Greenpeace.

A brief history will be helpful.

When the ministry of home affairs (MHA), headed by Rajnath Singh, had last disabled Greenpeace India’s access to funds remitted to it by Greenpeace International and Climate Works Foundation (GPICWF), Greenpeace sent a representation to the ministry asking why this had been done. This was before it filed a petition before the Delhi High Court.

 Greenpeace suspension: This time Rajnath may have better ammo against NGO

Agencies

The MHA had, in reply to the representation by Greenpeace, sought complete details of the project for which this remittance had been done. However, and this is what may have contributed to the Centre's defeat before the Delhi High Court, the MHA did not dispatch its reply (dated 28 July 2014) until 3 September - much after Greenpeace filed the petition.

Additionally, it sent another communication to Greenpeace dated 8 September 2014 indicating that it was seeking to exercise its powers under Section 23 of the FCRA 2010 - a provision which authorises the Centre to enter the premises to inspect the accounts or records of an organisation if it has grounds to suspect that the provisions of the FCRA were being violated.

During the pendency of the matter, the Delhi High Court was informed that the inspection took place between 24 and 27 September and a report was being prepared (para 6.4). This inspection forms the basis of the MHA’s notice issued yesterday (9 April), as I shall later explain.

Therefore, the Delhi High Court judgment was obviously without the benefit of what was found in the search and seizure.

This is why the counsel for Greenpeace argued that, "pending enquiry and preparation of inspection report", there was no good reason why Greenpeace was not allowed access to its bank accounts (Para 7) particularly since Greenpeace was not notified of what FCRA violations it had committed (Para 7.1). Yesterday's notice has the benefit of the enquiry conducted (between 24 and 27 September), the inspection report and the findings of FCRA violations by Greenpeace.

It is also useful to note that the MHA's stand before the High Court was that it did not intend to disable Greenpeace's access to funds or donations generally for carrying out its activities. The problem was with the donor who remitted funds, ie, GPICWF, which was on the watch-list of MHA (Para 8), an argument that the Delhi High Court did not buy.

That said, the impression that the Modi government wanted to block Greenpeace funding totally is incorrect. In fact, as the High Court notes in Para 9.2, the MHA, rather surprisingly, was not even exercising powers under Section 9 of the FCRA - the only provision that could have authorised the Central Government to prohibit Greenpeace from accessing funds from GPICWF if it could show prejudicial effect to the sovereignty and integrity of India, public interest etc.

The Delhi High Court ruled that there was no material on record which would "presently justify" blocking Greenpeace's access to the IDBI Bank account. Indeed, neither MHA nor the Centre had any material because they hadn't completed the search and seizure, or an inspection report based on that while the matter was being heard.

The Delhi High Court judgment can be read here. If one reads the entire judgment, it will be obvious that, contrary to what Greenpeace claims now, it does not mention anywhere that MHA's act was "arbitrary, illegal and unconstitutional."

So, what does yesterday's MHA order (which can be read here) do?

Contrary to media reports, it does not block funding of Greenpeace under Section 9 of the FCRA. It temporarily suspends Greenpeace's registration under Section 13 for a period of 180 days.

How can MHA do this?

Section 14 mentions the grounds under which the certificate of registration given to an organisation can be cancelled, one of which is that the holder of the certificate, i.e., Greenpeace, has violated some provisions of the FCRA or the rules made thereunder.

Indeed, before cancelling the certificate, MHA has to give Greenpeace enough opportunity to defend the violations. Therefore, during the pendency of the Centre's consideration of whether or not to cancel, it has the powers to temporarily suspend registration under Section 13.

In the detailed order, the ministry enlists violations such as not informing appropriate authorities before transferring funds between bank accounts, under-reporting and repeated inaccuracies in amount of foreign contributions (a glaring example being the claim of reporting ‘nil’ contributions when the foreign money received was around Rs 6.6 crore), transferring foreign contributions from an FCRA-registered NGO to a non-FCRA registered NGO, suppression and non-disclosure of salaries paid to a foreign Greenpeace activist, etc.

Sure, Greenpeace was not in the provable wrong when the Delhi High Court was hearing the matter on which it handed a judgment in January this year. As explained earlier, there was no material on record back then which could form the legal basis for any adverse action against Greenpeace.

However, given the several violations listed in the MHA's order after the inspection last September, there is some material to warrant action against FCRA – at least a temporary suspension. After two high-profile failures, including in the Priya Pillai case, the Centre may have finally got its act together against Greenpeace.

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Updated Date: Apr 10, 2015 12:15:20 IST