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FCRA: India’s controversial law to harass civil society

Last week a global human rights watchdog, Amnesty International, had to halt its operations in India. The organisation has accused BJP government lead by Narendra Modi for consistent harassment and witch hunt as its bank accounts were frozen by the ultra-nationalist government.

BJP government has consistently been harassing the NGOs, religious freedom activists and human rights defenders.

BJP government has also used India’s controversial Foreign Contribution Regulation Act (FCRA) as an arm-twisting mechanism against NGO’s, Civil society organizations, and Charities. During its first tenure, BJP Government in 2015 cancelled and suspended the licenses of approximately 8,000 NGOs including the Greenpeace India under the FCRA.

Under this controversial legislation human right organisations, missionaries and religious organizations must comply with the FCRA, which limits overseas assistance to certain NGOs, including ones with religious affiliation. The FCRA controls foreign funding for NGOs.

The BJP government has used FCRA to block the funds to hamper the activities of NGOs that question or condemn the government or its policies. However, both BJP and Indian National Congress has been found seriously violating the laws under this act. In 2014, Delhi High court determined that both BJP and Indian National Congress were guilty of violating the FCRA as they received millions of dollars donations from foreign entities for their 2014 election campaigns.

Ironically in March 2016 the BJP government hastily and silently introduced an amendment to the FCRA during the budget session to legalise funding by foreign entities to political parties. The amendment came into effect retrospectively from 2010, when the FCRA was introduced.

This was clearly mocking of the Judicial system by BJP Government to cover its wrongdoings with retrospective effect.

The retrospective amendment in FCRA clearly contradicted with the basic purpose of the said legislation. The FCRA was initially legislated to forbid political parties, politicians, and election candidates from accepting foreign donations to avoid foreign interests from affecting Indian electoral process. But the BJP government’s amendment streamlined the way for foreign Hindu organizations to send money to India for the persecution of religious minorities in India.

South Asia Citizens Web has released a report titled ‘Hindu Nationalism in the United States’. The report discussed the policies and actions of Hindu radical groups in the United States.

The report covered tax records, newspaper articles, and other sources on the NGOs in the United States affiliated with the Sangh Parivar (family of Hindu nationalist groups which includes Rashtriya Swayamsevak Sangh (RSS), Vishwa Hindu Parishad (VHP), Bajrang Dal, and Bharatiya Janata Party (BJP).

According to the report, “India-based Sangh affiliates receive social and financial support from its U.S.-based wings, the latter of which exist largely as tax-exempt non-profit organizations in the United States. The report has identified U.S. based organizations i.e. Hindu Swayamsevak Sangh (HSS), Vishwa Hindu Parishad of America (VHPA), Sewa International USA, Ekal Vidyalaya Foundation-USA, The Overseas Friends of the Bharatiya Janata Party – USA (OFBJP) as affiliates of Sangh Parivar.

While the Indian Government continues to use the Foreign Contribution Regulation Act (FCRA) to limit foreign funding for NGOs’ the Hindutva supporter organizations have never come under the scrutiny of FCRA.

With the amendment in FCRA, these foreign-based radical Hindu organizations can send funds to India without any restriction to support hate campaigns. Under the new definition of FCRA, so long as the foreign company’s ownership of an Indian entity is within the foreign investment limits prescribed by the government for that sector, the company will be treated as “Indian” for the purposes of the FCRA.

The Section 9 of amended FCRA enables the Government of India, to disallow the acceptance of foreign donations where the Government “is satisfied that the acceptance of foreign contribution… is likely to affect prejudicially… public interest.” Section 12(4) FCRA outlines the conditions for registration under the Act which includes that the acceptance of foreign donations is not likely to affect prejudicially, inter alia, the scientific or economic interest of the State or the public interest. The notions used in the act are very ambiguous and open to abuse as the act has not offered any definitions of the notions “security, strategic, scientific or economic interest of the State,” or of “the public interest”.

The Indian establishment has previously targeted human rights activist Teesta Setalvad and her husband, Javed Anand, on the alleged violation of the FCRA and receiving funds unlawfully. Setalvad is renowned for her supportive endeavours for victims of the 2002 anti- Muslim Gujarat riots.

She has been campaigning for seeking criminal charges against Indian officials, including Prime Minister Modi for their alleged involvement in the anti-Muslim riots. The Ford Foundation which supported the work of Setalvad was also put on the watch list of FCRA. The US Department of State has raised concerns over the constraints that were put on the Ford Foundation.

Another example of the misuse of the FCRA is that Priya Pillai, a Greenpeace India staff was offloaded from a flight from New Delhi to London. She was scheduled to brief the members of the British Parliament.

As reported by Times of India, the Indian Home Ministry had directed to stop flow of funds to four NGOs including Green Peace funded by the U.S. third sector organizations.

Times of India further anonymously quoted a senior intelligence official who confirmed that ‘a lookout circular had been issued against Pillai given her active association with Greenpeace India.

He stated ‘she was to talk about the campaign of a blacklisted organization, which was not seen as appropriate.’ However, the Delhi High Court ruled that this action by the Indian Home Ministry sullied Pillai’s rights to travel and to freedom of expression which was termed as ‘undemocratic’.

In September 2015 the BJP government suspended Greenpeace’s registration under FCRA. It also put a leading Christian Charity ‘Caritas International’ on its watch list under FCRA. The charity which is considered to be a social arm of the Vatican; scrutinized for alleged ‘anti-India activities’.

United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association Maina Kiai has previously analysed the FCRA and clearly stated in a note, ‘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.

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 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 and Rules, do not meet the obligations of the Union of India under international law, standards and principles.’

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Disclaimer: The views expressed in this article are solely of the author and do not represent ARY policies or opinion.