Home ministry actions fail court test
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The Foreign Contribution (Regulation) Act (FCRA), 2010, falls under the purview of the ministry of home affairs (MHA)’s foreigners division and has lately earned the moniker of “dissent-silencing tool” from civil society. And the courts seem to agree. From Indian Social Action Forum (INSAF) to Greenpeace India, organizations that have had their registrations suspended and accounts frozen by MHA have gone to court and received favourable verdicts.
“Currently, the FCRA is being used with the presumption that non-profits are at fault to begin with and no benefit of doubt is given, which is available even to murderers,” said N. Paul Divakar of the National Campaign for Dalit Human Rights (NCDHR), a Delhi-based non-profit committed to the elimination of discrimination based on caste.
“The application of the law is the problem and the MHA is doing things that the law does not permit it to…that is the reason why all petitions challenging the actions of the MHA are being decided in favour of the petitioner, like our case against the misuse of FCRA by political parties,” said Supreme Court advocate Prashant Bhushan, who represented the Association For Democratic Reforms (ADR), a non-profit that works in the field of electoral and political reforms.
Bhushan filed a public interest litigation (PIL) against political parties and their funding in the Delhi high court in 2013, and the case is before the Supreme Court now.
Successive governments have accused non-profits of working against national interest, of laundering money and promoting religious conversions. However, following the leak of the Intelligence Bureau’s classified report in June 2014, these accusations have gathered steam—there is now an unprecedented vigour in government-led agencies to restrict funding to non-profits, especially that are coming from outside the country.
Sanjay Parikh, a Supreme Court advocate who has appeared on behalf of three separate NGOs in the past five years to challenge the suspension and freezing of accounts by MHA using FCRA, said, “Misuse of power by the government is apparent from the judgements decided in favour of the organizations instead of MHA, which seems to have acted arbitrarily.”
According to him, MHA, in its eagerness to defame civil society, failed to follow the law. At the same time, organizations accused of wrongdoing by MHA mostly have audited accounts, and have complied with the law.
“If an organization is not following the law, the ministry needs to issue a show-cause notice, await a response and then take action, which must be explained. But, as seen in the court cases so far, either this procedure is not followed or the ministry is unable to substantiate/prove its actions,” he said.
However, Supreme Court advocate Kabir Dixit, who is helping formulate a public interest litigation against certain FCRA provisions, said, “Some organizations don’t end up in court because of financial constraints or lack of human capital. But there are too many who would rather not speak out against the government in the year that their licence is up for renewal.”
FCRA, 2010, requires that all licences have to be renewed within five years of issue. Prior to this, under the 1976 version of the Act, licences were granted for life. All non-profits are up for licence renewal by the end of March 2016.
Dixit, who is working with INSAF, said, “The absence of organizations challenging MHA notices or orders is a little disconcerting because the law is being used arbitrarily at present.”
Aggrieved organizations that have gone to court have been able to convincingly demonstrate the violations of the Act and the court has been quick to rule in their favour, based on the principles of natural justice. “The facts of many cases seem to suggest that decisions to punish the organizations precede any enquiry under the Act,” added Dixit.
Mistrust between the government and those working in the development sector will have other repercussions. According to Divakar of NCDHR, “In the last decade, we have seen youth from rural or disadvantaged communities coming forward, wanting to do something for their village, district or community. Earlier, the only avenue available to them was joining the bureaucracy or police. Now, they have been setting up not-for-profits to ensure implementation of laws like the (Mahatma Gandhi) National Rural Employment Guarantee Scheme and equitable distribution of resources as offered under the Forest Rights Act, etc.” He said the government’s negative stance towards civil society would hinder this shift.
While accepting the need for monitoring foreign funds to the development sector, Bhushan said a ministry such as MHA is intrinsically tied to the politics of the ruling party. “There is an inherent conflict of interest here in the administration of the law because the government is the administrator. The party which controls the government gets to use it as it wishes,”he said.