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Emasculating Voluntary Movement
Brad Adams
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The
Government of India has found a new way to regulate (read leash
and control) the NGO sector. Over the years
India’s FCRA
has at best been a nuisance for legitimate nongovernmental
organizations and at worst a tool to harass those that have been
critical of certain policies, practices, and interests of the
government of the day. In its present form, the FCRB will
further exacerbate these problems. These extracts from an Open
Letter from the voluntary sector to Prime Minister Manmohan
Singh brings out the stark situation. |
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 Mr
Prime Minister,
We write to you
about the Foreign Contribution (Regulation) Act (FCRA), which the
Indian parliament passed in 1976 during a state of emergency, and a
proposed new bill, the Foreign Contribution (Regulation) Bill, 2006
(FCRB), which your government introduced to the Rajya Sabha in
December 2006. The new bill was referred to the parliamentary
standing committee and is presently awaiting cabinet approval before
being placed for enactment. If adopted, it will replace the FCRA.
Initially, the
primary purpose of the FCRA was to prohibit political parties,
politicians, and election candidates from accepting foreign material
and financial support in order to ensure that Indian elections were
not affected by foreign interests. However, provisions were also
included which made it compulsory for associations considered to be
of a “political nature” to obtain prior permission from the
government before accepting any foreign contributions.
Through an
amendment in 1985, the Act’s emphasis on nongovernmental
organizations (NGOs) increased. Organizations having a “definite
cultural, economic, educational, religious or social programme” have
also been required to either register themselves with the government
or receive its prior permission in order to accept foreign donations
and contributions.
To address
poverty, inequality, human rights, or other social problems, many
NGOs accept foreign funding to carry out their lawful activities.
Over the years, the FCRA has been used to block funding for and
harass organizations that have exercised their lawful right of
questioning or criticizing government policies and practices. This
is surprising in a robust democracy. The application of the law in
such ways not only constitutes a breach of the right to freedom of
association, it also violates the right to freedom of expression,
both of which are protected under international law and by
India’s
constitution.
The Ministry of
Home Affairs, which is in charge of the Act’s implementation,
considers the FCRA to be a way of ensuring that foreign
contributions are not used in ways that may jeopardize
India’s national
security. This is a legitimate concern for all governments. However,
the FCRA has little or no practical effect in preventing extremist
groups from obtaining resources. Other laws, such as those relating
to money laundering, are more effective, while the primary method of
protecting national security is through strong law enforcement and
intelligence gathering. Instead of protecting national security, the
FCRA has had a stifling effect on the nongovernmental sector and a
negative impact on the country’s development as a whole, depriving
many needy individuals and communities of desperately needed
financial support.
Indian NGOs have
for many years expressed their concerns about the FCRA and its
implementation and have requested that the Act be amended. However,
rather than addressing the problematic features of the FCRA, the
FCRB introduces provisions which will further undermine the right of
organizations to seek and receive financial support. Its explicit
purpose, as stipulated in the preamble of the Bill, is to prohibit
the use of foreign support for any activities detrimental to the
“national interest.” As you know from your time in the political
opposition, the government of the day can define the “national
interest” quite broadly, often equating the national interest with
their more narrow political interests. In this way, the FCRA has
been used as a political tool and lever against organizations
critical of the government or its departments.
The FCRB, in
Section 11(3), substantially expands the powers of the government to
make its prior permission a condition for an organization to accept
a foreign contribution. Under the Bill, the government can decide
that prior permission should be required for:
an entire class
of associations; any specific geographic areas; any specific
purposes; and any specific sources.
The government
can thus decide, for instance, that religious organizations or human
rights groups cannot accept any contributions. It can also decide
that no contributions can be received by organizations in a
particular state, or for work relating to a politically sensitive
issue, or from a particular donor agency. Such restrictions would be
a direct violation of international law.
Organizations of
a “political nature”
Of particular
concern are limits on contributions to organizations of a “political
nature.” Section 4 of the FCRA bans, among others, political parties
from receiving any foreign contributions. Such a requirement is
common in democratic states and is not in contravention of
international human rights law. However, under Section 5 other
organizations considered to be of a “political nature” are also
required to obtain prior permission of the government before
accepting any such contributions. Under Section 3(1)(f) of the FCRB,
these type of organizations will face an absolute prohibition on
receiving foreign funding in the same way as political parties.
Such provisions
are anathema to freedom of association and have no place in a
democracy. The term “political nature” is a vague and undefined.
Organizations
with a “definite cultural, economic, educational, religious or
social programme”
Under Section 6
of the FCRA, organizations which are not of a “political nature” but
have a “definite cultural, economic, educational, religious or
social program” can only accept foreign contributions if they are
registered with or receive prior permission from the government. The
FCRA does not specify the grounds on which an association can be
denied registration or prior permission, but the Ministry of Home
Affairs has published a list of more than 20 common grounds for
rejecting an application, including if “the credibility of any
member of the governing body is in doubt,” or if one of the office
bearers/trustees is “a foreign national, other than of Indian
origin.”
The published
list of common grounds is only to be regarded as “illustrations” and
leaves it open for the Ministry to reject an application for other
reasons. This makes the decisions unpredictable and at times
arbitrary.
The terms
“undesirable purposes,” “meaningful project,” and “meaningful
activity” are not defined in the FCRB, leaving them susceptible to
abuse. With regard to conversion from one religion to another, the
terms “inducement” and “indirectly” lack clarity and leave room for
arbitrary implementation.
Barring those
convicted or facing prosecution
Under Section
12(3)(d and e) of the FCRB, none of the directors or office bearers
of an organization can have either a past conviction or a pending
prosecution for any offence. Prosecutions and past convictions which
may be completely unrelated to the running of an organization do not
constitute a legitimate ground for restricting freedom of
association.
There is no
question that NGOs must be held just as accountable under law as any
other organizations. However, existing laws can be used to prevent
financial misdeeds and to ensure that no group is acting as a front
to support human rights abuses by non-state actors. In order to make
sure that legitimate NGOs can make their crucial and necessary
contribution to the country’s development,
India should
make it a priority to develop a legal framework which safeguards
freedom of association and the right of NGOs to seek and receive
funding.
We thus urge you
not to place the FCRB to vote. Instead, we urge you to repeal those
provisions of the FCRA which do not conform to international
standards and potentially undermine the work of nongovernmental
organizations.
Mr. Prime
Minister, over the years India’s FCRA has at best been a nuisance
for legitimate nongovernmental organizations and at worst a tool to
harass those that have been critical of certain policies, practices,
and interests of the government of the day. In its present form, the
FCRB will further exacerbate these problems.
Both the
existing Act and the proposed Bill are in clear breach of
international human rights law and other international standards.
Instead of being in the company of other democracies, the FCRA and
FCRB leave the world’s largest democracy in the company of a number
of autocratic states well known for their restrictive policies
towards nongovernmental organizations and for their poor respect for
freedom of association.
Yours
sincerely,
Brad Adams
Executive Director
Human Rights Watch
11
June,
2008
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