Can’t accept foreign funds while opposing govt policies: J.K. Chattopadhyay

On 3 September, the Union home ministry cancelled Greenpeace India’s licence to accept foreign donations. Other organisations like those run by civil rights activist Teesta Setalvad and Ford Foundation have come under the government watch for allegedly misusing the provisions of Foreign Contribution (Regulation) Act 2010.

There have been several media reports about government cancelling licences of not-for-profit associations (NPAs). While the civil society calls it selective vendetta, former deputy secretary at the foreigners’ division in the home ministry J.K. Chattopadhyay is of the view that these are stray incidents that are being blown out of proportion.

Chattopadhyay was instrumental in the early implementation of the FCRA 2010 that replaced its 1976 version. He has written a book, FCRA 2010 Made Easy, 300 Q&A, on the act aimed at helping NPAs understand the law governing them. Edited excerpts from an interview:

What are the common violations made by NPAs and what is the procedure that ministry of home affairs (MHA) must follow while dealing with them?

Technical violations, which are often not penalized. According to the procedure as per the Act, one of the ways in which MHA can act if the department receives a complaint against an NPA. It then has to investigate the charges of the complaint. Anyone can make a complaint. For example, mixing of foreign funds with domestic funds or the use of foreign contribution (FC) being different from the purpose for which it was received or not according to the bylaws of the organization or even the transfer of foreign contribution to unregistered associations. In such technical violations, in the first instance no penalty is imposed and the NPA is only reprimanded.

Grave violations such as the acceptance and use of foreign contribution without the FCRA license, registration or prior permission from MHA, or for that matter the use of FC for personal use, MHA has to take stricter action. In such cases, first there is an investigation by MHA officials and if the investigation reveals that the foreign funds have not been misappropriated, MHA imposes monetary penalty as per the act. Cases of misappropriation of FC for personal gains or unlawful purposes are sent for investigation and prosecution to the CBI (Central Bureau of Investigation) or State Police depending on the amount of FC. On the matter of not filing annual returns, FCRA wing issues show cause notices and after following due procedure cancels the registration of such NPAs which do not respond.

Have such violations taken place, in the past?

Yes. In 2011 around 22,000 organizations were issued show cause notices for not filing annual returns for the financial years—2006-07, 2007-08 and 2008-09. Of these around 400 organizations got back to the FCRA department and either declared that they no longer needed the FCRA licence, or re-submitted the accounts and, those who had not done so, also submitted the returns. Those who did not respond at all—around 4,000—their FCRA registrations were cancelled as per the provisions of the law. Even in 2005 more than 8,000 registered organisations were placed under prior permission category because they had not submitted annual returns for the years 2002, 2003 and 2004.

What about the number of organizations being penalized this year?

In 2015, MHA has notified that the FCRA registration of 8,975 organizations has been cancelled for non-submission of returns for the years 2009-10 to 2011-12. This has been done after issuing show cause notices to around 10,500 defaulting organisations.

Why are civil society organizations protesting about the FCRA 2010 now?

In my experience, the protests are exaggerated. Terms like draconian, dictatorial being ascribed to lawful government action is incorrect. All the noise about civil society being muzzled seems to be an attempt to discredit the government.

There are two cases that everyone is talking about—Greenpeace and Ford Foundation. Where are the others? Just because one or two cases are being highlighted by the media and that too where there have been violations, one can’t say that the government is trying to stifle the NGO sector.

The law has existed for 40 years and in all that there have been 100 odd organizations whose cases have been sent for prosecution for violation of the act. It is not really some bureaucrat’s discretion or the whim of a minister that the law can be used or misused.

What is national interest and who decides?

National interest is a value-based concept and is usually taken to mean what the government in power decides as to what is the best for the greater good. And the government of the day is supposed to represent interests of the greater number of people, because it is elected by the majority. As per the law of the country, you cannot accept foreign funding, while opposing the policies of the government. Agitation is a democratic right. However, FCRA does not permit NPAs to agitate against government policies or criticize the government using foreign contribution. Object all you want, but find an alternative source of revenue.