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The central government of India has passed the Foreign Contribution (Regulation) Amendment Bill, 2020, and thereby made significant changes to the Foreign Contribution (Regulation) Act, or FCRA.

In a paper titled Civil Society Under Assault, Douglas Rutzen, president and CEO of the International Center for Not-for-Profit Law, points out that the Arab Spring made governments around the world take notice of these mass movements and initiate measures to restrict civil society in the hopes of preventing similar uprisings on their own soil. He notes that since 2012, more than 120 laws constraining the freedoms of association or assembly have been proposed or enacted in 60 countries. He further says, “Of these initiatives, approximately half could be called ‘framework’ legislation: They constrain the incorporation, registration, operation, and general life cycle of CSOs. Roughly 19 percent restrict the freedom of assembly. The greatest uptick, however, has been in restrictions on international funding, which now account for 35 percent of all restrictive measures." Rutzen goes on: “The justifications that governments use for enacting restrictions on CSOs fall into four broad categories: 1) protecting state sovereignty; 2) promoting transparency and accountability in the civil society sector; 3) enhancing aid effectiveness and coordination; and 4) pursuing national security, counterterrorism, and anti–money laundering objectives."

It is therefore important to situate and read the amendments to the FCRA bill within the past and present political context in India. These amendments cannot be seen as a simple exercise of updating regulations. The very history of FCRA suggests a purpose that goes beyond its stated aims. Right from the beginning, it was a law that served to constrain and silence political dissent. The effort to curb foreign funding of non-profit organizations can be traced to the regime of late Prime Minister Indira Gandhi. The original FCRA was enacted in 1976 to prohibit electoral candidates, political parties, judges, Members of Parliament and even cartoonists from accepting foreign contributions. In a 2016 article, journalist G. Sampath points out that, “The inclusion of ‘cartoonists’ under its ambit suggests the intent was to clamp down on political dissent."

Conveniently, political parties across the spectrum, from the Left to the Right, have championed the demand for stronger governmental control and regulation of non-profits as far as foreign funding is concerned, each for its own political reasons. Political parties and governments have opportunistically, depending on their own compulsions and ideologies, variously looked at certain kinds of “foreign funding" and non-governmental organizations (NGOs) as problematic.

The FCRA of 2010 was enacted by the previous Congress-led United Progressive Alliance government. This was suspected to be because it was annoyed by Greenpeace India’s involvement in protests against the nuclear power project at Kudankulam, Tamil Nadu. The Communist Party of India (Marxist) has also favoured greater curbs, possibly on account of its discomfort with the rise of the Aam Aadmi Party and its “non-political" and even “anti-political" origins, based as its emergence was on a movement seen to have middle-class NGO antecedents.

It is important to note that the ruling Bharatiya Janata Party (BJP) itself is a product of what is often called the world’s largest NGO: the Rashtriya Swayamsevak Sangh.

What is forgotten is that the original 1976 law was primarily aimed at political parties and journalists, while the new law of 2010 shifted its focus squarely to NGOs and “organisations of a political nature". Sampath further points out, “Both the Bharatiya Janata Party (BJP) and the Congress have been pulled up by the Delhi High Court in 2014 for violating FCRA rules, having accepted contributions from the Indian subsidiaries of the London-based multinational, Vedanta." The issue of foreign funding of political parties has conveniently been legalized with the insertion of a clause in the Finance Bill of 2016, which amended the FCRA’s relevant section with retrospective effect in such a way that a “foreign company" became a subsidiary of an Indian company, and therefore acceptable.

Today, the targets seem to include inconvenient NGOs and citizens’ groups that come under the rubric of vaguely defined organizations “of a political nature" in the Foreign Contribution (Regulation) Rules, 2011. This covers such organizations as trade unions, students’ unions, workers’ unions, youth forums, women’s wing of a political party, farmer organizations, youth organizations based on caste, community, religion, language and “any organisation, by whatever name it is called, which habitually engages itself in or employs common methods of political action like ‘bandh’ or ‘hartal’, ‘rasta roko’, ‘rail roko’ or ‘jail bharo’ in support of public causes".

Such groups were active during the countrywide protests against the Citizenship Amendment Act and proposed National Register of Citizens, an uprising largely of university students. These groups were also at the forefront in supporting subsequent citizens’ initiatives to ameliorate the distress of our working class during the lockdown. Even though NGOs and foreign-funded organizations were not at the vanguard of these protests, movements and initiatives, they do appear to provide a convenient scapegoat for the government to hide its own failings. Many from these organizations in their individual capacities openly participated and supported the protesters, often joining the voices on social media critical of the government’s actions.

This is not to argue that there is no need for regulation and reform of the country’s NGO sector, but to contend that the FCRA’s selective employment could turn it into a political tool in the hands of state authorities. It could stymie collective uprisings and protests, and quell critiques and dissent, all of which play a legitimate role in a democracy.

Radha Khan is an independent consultant working in the field of gender, governance and social inclusion

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