On Thursday, the Madras High Court ordered a stay on the Home Ministry's order cancelling the registration of Greenpeace India under the Foreign Contribution Regulation Act, or FCRA.
This is the fourth time in a single year that Greenpeace has had to approach the courts for relief regarding FCRA violations, despite the fact that no crime has yet been proven against it. While such legal troubles are not unique to Greenpeace (FCRA licenses of more than 15,000 NGOs have been cancelled just this year), it is worth noting that at the same time no action has been taken against the Congress and the Bharatiya Janata Party, both of whom were found guilty of violating the FCRA by the Delhi High Court in 2014.
At the heart of this controversy is the law that is meant to regulate the acceptance of foreign contributions by certain individuals or associations or companies for any activities "detrimental to the national interest". . The FCRA was first enacted during the Emergency in 1976, ostensibly meant to address “security concerns” related to foreign funding in politics. It was amended in 2010 and it seemed very clear from the parliamentary debates then that the amendment was meant primarily for NGOs.
Both the Act and the FCRA Rules framed in 2011 exclude business and financial transactions from their purview, and include vague terms that can be very widely interpreted to include a host of organisations in its list of offenders.
Consider for instance Section 3 of the 2010 Act, which lists individuals and organisations prohibited from receiving foreign funds. Apart from individuals and entities already prohibited under the 1976 law – which included political parties, candidates for election, legislators, journalists, publishing houses and government servants – the 2010 amendment also adds electronic media companies and “organisations of a political nature” to the list.
What is ‘political’?
The phrase “organisations of a political nature” has not been defined in the Act. Section 5 simply states that the Central Government may specify any organisation as being of political nature “…having regard to the activities of the organisation or the ideology propagated by the organisation …” among other considerations. The description becomes even more expansive and yet remains vague under the FCRA Rules 2011, which includes trade unions, voluntary groups with “objectives of a political nature”, identity-based organisation seeking “advancement of political interests” of a social group or any organisation that engages “common methods of political action… in support of public causes” in its list of what may be considered an “organisation of political nature”.
It does not take a legal luminary to see that these provisions leave a lot of latitude for subjective interpretation. This becomes especially problematic considering that officials empowered to act under the FCRA can take action against any “violators”, like cancelling or suspending registration, without having to prove anything before a court of law. The courts come into the picture only when an aggrieved party decides to bring an appeal.
Executive overreach
These fears of executive overreach have unfortunately been substantiated time and again. In 2012, the Centre for Promotion of Social Concerns had its license cancelled for taking out a silent march against alleged atrocities by armed forces. PRS India, a legislative research organisation, was denied an FCRA registration in 2014. Again in 2014, barely a month after the new National Democratic Alliance government came to power, an Intelligence Bureau report was leaked labelling organisations like Greenpeace “anti-national” because of their anti-nuclear stance. Greenpeace has been facing troubles related to FCRA ever since.
In July 2015, Teesta Setalvad's Citizens for Justice and Peace was served with a Home Ministry notice alleging various FCRA violations. One of the many allegations was that “Ms Teesta Setalvad and Mr Javed Anand… from time to time keep on writing various articles in Newspapers and Magazines”.
One of the most illuminating cases is that of Indian Social Action Forum, or INSAF, an umbrella body of over 700 grassroots organisations involved in issues ranging from the environment to civil rights advocacy. In 2011, they had filed a petition in Delhi High Court challenging the constitutionality of FCRA. The challenge was dismissed and is now pending before the Supreme Court. But a year later in 2013 INSAF was slapped with a Home Ministry order freezing its bank account and suspending its FCRA registration. INSAF had to approach the High Court just to be able to pay its staff’s salary.
Ambiguous ambit
The High Court ultimately quashed the order, but even then the Home Ministry withdrew its suspension only after a contempt of court proceeding was filed against it. INSAF has documented the details of its troubles with FCRA here.
There is certainly nothing wrong in asking more accountability from NGOs, but the FCRA goes much beyond that mandate. By outlawing any activity of a “political” nature, and by leaving the government free to decide what is “political”, it basically outlaws all activity.
Keep in mind that no action has been taken for two years against political parties found guilty of violating this same law, and it seems very clear what kind of politics are being singled out. The FCRA is a law that seems impossible not to violate, unless perhaps one stands on the right side of the political spectrum.
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This is the fourth time in a single year that Greenpeace has had to approach the courts for relief regarding FCRA violations, despite the fact that no crime has yet been proven against it. While such legal troubles are not unique to Greenpeace (FCRA licenses of more than 15,000 NGOs have been cancelled just this year), it is worth noting that at the same time no action has been taken against the Congress and the Bharatiya Janata Party, both of whom were found guilty of violating the FCRA by the Delhi High Court in 2014.
At the heart of this controversy is the law that is meant to regulate the acceptance of foreign contributions by certain individuals or associations or companies for any activities "detrimental to the national interest". . The FCRA was first enacted during the Emergency in 1976, ostensibly meant to address “security concerns” related to foreign funding in politics. It was amended in 2010 and it seemed very clear from the parliamentary debates then that the amendment was meant primarily for NGOs.
Both the Act and the FCRA Rules framed in 2011 exclude business and financial transactions from their purview, and include vague terms that can be very widely interpreted to include a host of organisations in its list of offenders.
Consider for instance Section 3 of the 2010 Act, which lists individuals and organisations prohibited from receiving foreign funds. Apart from individuals and entities already prohibited under the 1976 law – which included political parties, candidates for election, legislators, journalists, publishing houses and government servants – the 2010 amendment also adds electronic media companies and “organisations of a political nature” to the list.
What is ‘political’?
The phrase “organisations of a political nature” has not been defined in the Act. Section 5 simply states that the Central Government may specify any organisation as being of political nature “…having regard to the activities of the organisation or the ideology propagated by the organisation …” among other considerations. The description becomes even more expansive and yet remains vague under the FCRA Rules 2011, which includes trade unions, voluntary groups with “objectives of a political nature”, identity-based organisation seeking “advancement of political interests” of a social group or any organisation that engages “common methods of political action… in support of public causes” in its list of what may be considered an “organisation of political nature”.
It does not take a legal luminary to see that these provisions leave a lot of latitude for subjective interpretation. This becomes especially problematic considering that officials empowered to act under the FCRA can take action against any “violators”, like cancelling or suspending registration, without having to prove anything before a court of law. The courts come into the picture only when an aggrieved party decides to bring an appeal.
Executive overreach
These fears of executive overreach have unfortunately been substantiated time and again. In 2012, the Centre for Promotion of Social Concerns had its license cancelled for taking out a silent march against alleged atrocities by armed forces. PRS India, a legislative research organisation, was denied an FCRA registration in 2014. Again in 2014, barely a month after the new National Democratic Alliance government came to power, an Intelligence Bureau report was leaked labelling organisations like Greenpeace “anti-national” because of their anti-nuclear stance. Greenpeace has been facing troubles related to FCRA ever since.
In July 2015, Teesta Setalvad's Citizens for Justice and Peace was served with a Home Ministry notice alleging various FCRA violations. One of the many allegations was that “Ms Teesta Setalvad and Mr Javed Anand… from time to time keep on writing various articles in Newspapers and Magazines”.
One of the most illuminating cases is that of Indian Social Action Forum, or INSAF, an umbrella body of over 700 grassroots organisations involved in issues ranging from the environment to civil rights advocacy. In 2011, they had filed a petition in Delhi High Court challenging the constitutionality of FCRA. The challenge was dismissed and is now pending before the Supreme Court. But a year later in 2013 INSAF was slapped with a Home Ministry order freezing its bank account and suspending its FCRA registration. INSAF had to approach the High Court just to be able to pay its staff’s salary.
Ambiguous ambit
The High Court ultimately quashed the order, but even then the Home Ministry withdrew its suspension only after a contempt of court proceeding was filed against it. INSAF has documented the details of its troubles with FCRA here.
There is certainly nothing wrong in asking more accountability from NGOs, but the FCRA goes much beyond that mandate. By outlawing any activity of a “political” nature, and by leaving the government free to decide what is “political”, it basically outlaws all activity.
Keep in mind that no action has been taken for two years against political parties found guilty of violating this same law, and it seems very clear what kind of politics are being singled out. The FCRA is a law that seems impossible not to violate, unless perhaps one stands on the right side of the political spectrum.
