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FCRA clampdown: Need to go beyond legal framework, project collective voice

Senior activists and concerned individuals* met in Gujarat on March 17 in Janvikas to discuss implications of Foreign Contribution Regulation Act (FCRA) for civil rights organizations. Text of the minutes:
GaganSethi (Janvikas) began by asking Harinesh Pandya (Janpath) to give a broad picture of FCRA and how it is affecting the civil society in Gujarat.
Harinesh Pandya said, Foreign Contribution Regulation Act (FCRA) was passed in 2010, when the Congress was ruling. Ever since then, the government at various levels began acting against civil society organizations which were not to their liking, especially those that opposed its anti-developmental globalization agenda such as setting of nuclear power plants. There was an effort to suppress their voice. After the government changed in 2014, FCRA began being used more extensively for suppressing civil society. First it cancelled FCRA license of 13,000 NGOs, uploading their names in bulk, citing technical violations. Then selective targeting began, in which the protesters against the Tamil Nadu nuclear power project wasn’t alone. There was a systematic attempt to undermine civil society. Resources began being controlled. Even organizations which took up health issues were not spared. There is a need to understand and confront this. Voluntary Action Network India or Vani has contacts with across the country. It has begun a dialogue with civil society organizations, and is involved in creating a database and deepening internal understanding. This effort should be strengthened. Its advocacy work needs support.
Coming to Gujarat, Harinesh Pandya said, initially it was made known, FCRA of 185 organizations was cancelled. We looked into the reasons for this. Some of them had not even taken FCRA funding. Others said they were in any case thinking of surrendering FCRA. In their view, they felt it necessary to come out of FCRA’s regulatory framework. Then came the second wave, when the FCRA of Anhad, Sabrang, Navsarjan, etc. was cancelled. The cancellation of Navsarjan’s FCRA was eye opening. The order itself suggests suppression of democratic rights. There was need to send a strong message through the media and oppose the order. We held a meeting and opposed the order, and said the government should apologize, and should realize that such action should not be taken. Many organizations came to the meeting, though those who are outside Ahmedabad could not attend. Now there is a need for future course of action with other states. Taking up the matter legally is not sufficient. The whole thrust of the government is to suppress civil society. And for this, all civil society organizations should come together.
A couple of participants raised queries on the legal framework of FCRA, which had its own limitations. The FCRA rules of 2011 had such vague terms like activity, programme, ideology, etc.,it was suggested. This was challenged in the Delhi High Court, which upheld the rules. Then there was also the problem of organizations like Khamir, working in Kutch. It applied for FCRA twice, but does not know why it was rejected.
Gagan Sethi intervened to say that there is a need to understand that many organizations who apply for FCRA are not always transparent. Also, they must understand that FCRA is a cloak and dagger act.
Harinesh Pandya continued, apart from the FCRA cancellation of Navsarjan and Anhad, others’ FCRA was suppressed for small violations, which were basically technical in nature. There were three organizations in Gujarat, whose FCRA was cancelled as they failed to submit their new address. The problem was resolved after the government was approached with bag full of documents. In another instance, a Pondicherry-based NGO’s FCRA was suspended for diversion of funds for non-FCRA activity. The NGO took legal advice. It was told that it should say it was a mistaken. It apologized. The authorities took this as proof of FCRA violation and cancelled FCRA. The bigger issue, however, is of NGOs who are challenging the government’s developmental model. They are the ones who are being targeted and suppressed.
Gagan Sethi asked Martin Macwan of Navsarjan to give the overall picture of the reasons which lay behind cancellation of Navsarjan’s FCRA, asking participants to understand the whole case.
Martin Macwan explained how in the case of Navsatjan, there was no procedural violation. The intention to cancel FCRA was political. Even intelligence bureau reports had cleared Navsarjan. Three events took place before FCRA was cancelled. Navsarjan had carried out a study on untouchability which was a big setback to the government. The study found that untouchability existed in 90.2 per cent of Gujarat’s villages. It also said that Dalit children had to sit separately from others in 54 per cent of schools for midday meal. This contradicted government claims. It told a CEPT University professor to come up with a parallel study to contradict Navsarjan’s findings. The study was tabled in the Gujarat state assembly yesterday. It has tried to scuttle the issue. The second event was Navsarjan joining protests against untouchability following the Una incident. There was a special debate on Una in Rajya Sabha. Here, the Navsarjan study was mentioned thrice. My name was also mentioned during the debate. I am one of the petitioners seeking a ban of cow vigilantes as they are extra-constitutional authorities.
Martin Macwan continued, the third incident was related to Thangadh police firing, in which three Dalit youths died in police firing. One of them was of 15 years and was previously in the Navsarjan school. Following the Thangadh incident, the government had assured speedy justice. But three years later, the police filed a c-summary and closed the case. It did this because it knew, the police itself was accused in a government-appointed report on the incident, which has not been made public. We questioned the decision to file c-summary for the case. We took out a morcha in Gandhinagar. The government became nervous. Those sitting on dharna were brought to the minister’s bungalows at midnight around 2 am and were offeredRs2 lakh to take back the protest. However, the protest continued. Those on dharna did not budge. The government was forced to form a special investigation team. Navsarjan’s FCRA was cleared on August 3, 2016, but it was cancelled on December 15, 2016 saying we were working against public and national interests. Interestingly, after revocation of FCRA license, they sent a team to audit Navsarjan accounts. When the team came, we told them, this kind of auditing has no legitimacy, as FCRA has been revoked. Yet we allowed them, as we believe in transparency.
Martin Macwan further said, in any case, we knew that the action against Navsarjan was coming. The minister had threatened us that he was going to take action against us. After all those in power know, the voluntary sector is becoming an important opposition to its so-called development agenda. It has huge outreach. It has its influence on most issues, whether related with communalism or Dalits. Recently, Navarjan filed a writ in the Delhi High Court. The first hearing was on March 12. A notice has been served to the government to provide explanation. The next hearing is on March 25. We don’t know what would its outcome. Meanwhile, the High Court has justified the ban on ZakirNaik’s NGO. You are on government radar the moment you try to educate people politically. Meanwhile, I am trying to convince the Navsarjan board that we should not receive foreign money even if we win the case. it’s a question of self-respect. While legally it’s not a crime to receive foreign funds, we must realize, we are registered under the same law as religious trusts which receive hundreds of crores. I think, there should be wider petition in the Supreme Court on the issue.
Gagan Sethi said there is also need to answer a larger issue. You are inviting profit making companies, which do not have to pass through any of the regulations on foreign funding that apply on us. One must explore whether t is possible to register as a profit-making company. Of course, under such a situation, technically it will not be a charitable activity. There would be a need to enter into a contractual agreement with donors. It would have to be a stringent as any market-based contract. The laws are so loose. If you sign a contract with the donor as a profit-making company, the only thing you would need to do is to pay tax. Are we a charity only because we want to evade tax?
MaheshPandya of Paryavaran Mitra said, it is ironical that a political party can take foreign money, and no questions are asked. This is because the government is not comfortable with questions raised against it by civil society. While the report questioning the Navsarjan study on untouchability, which we were told was meant for internal consumption, has been placed in the state assembly, the Thangadh report on shooting down three Dalit youths, prepared by IAS officer Sanjay Pradesh, has not been made public. This is strange.
Harinesh Pandya agreed, saying, the government is not comfortable with who are part of the rights based movement, questioning its developmental model. Hence it seeks to suppress civil society organizations. If it says we are anti-development, then it is possible to point out that foreign companies which are being wooed to bring in fresh foreign investment are adversely impacting employment opportunities in India.
Gagan Sethi believed that there is a need to look at the bigger picture, as it is not just the law, but the charitable activity and the ecosystem attached with it which needs to be looked at afresh. There is a need to provide a new framework. There are studied on this, some are lying in the Planning Commission as well. We must keep in mind that at the national level we should not get entangled in FCRA. There is a need to ask larger questions, such as the right to dissent, the NGOs’ representation in the United Nations, framing basic human rights standards, implementation of social justice laws and their framework. For this, the civil society does not have any central organization which can do all of it. There is no self-regulatory mechanism like Press Council of India. All civil society organizations are self-appointed identities. A Hindu math is in the same legal frame, as we. We have not asked for differentiating us.
Martin Macwan was asked by a participant as to why Navsarjan decided to take the legal option and was not fighting against the government which had imposed FCRA curb. To this, Martin Macwan said, this is not true. We have taken up not just legal action but also propagated how we have been wrongfully treated. Even foreign papers have taken note. Los Angeles Times ran an article on us. The New York Times interviewed me yesterday. Media has been reporting on us. We are fighting on both the fronts. There are two main persons who are against us. One of them is BJP MP, Shambhunath, and the minister, Atmaram Parmar. We are holding meetings and rallies at different places. We held a 2,000-strong rally and met the district collector in Bhavnagar. The minister tried to block the rally. He sought to ask transporters not to bring people to the rally. This did not work. At night, he asked the public works department to begin digging the road in the name of repair, so that people from villages do not turn up. But people came taking a different route, and we were a great success. We have been able to collect good amount of donations. We plan to hold similar meetings in different talukas, and people have assured us, they would donate. The minister phoned up one of our workers to say that he would be defeated in case we continued our campaign like this. He was told, he had started the whole thing by triggering cancellation of FCRA, so he should suffer. He claimed on phone that he had created ruckus at our rally in Rajkot. He didn’t know, his phone being recorded. The minister had to cancel a Surendranagar programme, as Dalits told him he had acted against Navsarjan and they would protest.
Mahesh Pandya agreed. Naming individuals, he said, a section of the media with RSS leanings were behind the campaign on foreign funding against NGOs in Gujarat.
Martin Macwan said, he forgot to add one thing. When such a situations come, all organizations will be affected. When crisis comes, we find ourselves to be weak. Of course, personal security is threatened. But we must remember, when we joined the sector, working for people was our priority. There are individuals who may be lured to take government support. This happens. It’s a long fight.
However, Martin Macwan regretted, some sections of the civil society are quiet. Some scribes attached with the civil society movement in Gujarat have not written even one word in support. Why? I would not go begging for their support. It’s a general issue. We find that villagers are more vocal, they are angry over the action against FCRA. People phone up from villages, invite us to reach up to them. They assure us, money will not be a problem to run the organization. But there is a problem with some of our own people, who are inside. But I take it very positively. After so many years the government has taken us very seriously.
Gagan Sethi explained that the problem with civil society is that the middle class mindset has taken over some of its space. The middle class is always fearful of what would happen to it. It lurks for a comfortable dinner daily.
Mahesh Pandya said, he had been to TV channels to explain why the FCRA ban on Navsarjan was wrong.
Ashok Chatterjee, former NID director, said, recently, he went to the National Institute of Design. During a meeting, I found that Niti Ayog had called civil society organizations “service delivery organisations”. We took objection; we said, they are partners, not service delivery organizations. The issue as discussed. Even today the sector is so difficult to define.
Gagan Sethi said, the matter has been discussed i in the 12th plan document. Ashok Chatterjee added, there is a need to have a relook into it.
GaganSethi asked the CSJ team to give its presentation comparing FCRA laws of India and its neighbours. The team, consisting of Fahad and Sumit, made its presentation on shrinking space for civil society to get fund from foreign countries. India is a party to United Nations conventions. In 2016, a UN special rapporteur said, India is violating the UN convention which allows access to resources to further the aims of freedom of association and expression. In international law, there are restrictions to this freedom only if there is support to terrorism or money laundering. The graph shows that the number of laws restricting foreign funds, passed between 1995 and 2010, increased phenomenally across the world.
Viraj of Vani said, things particularly became worse after 2001.
CSJ presentation further said, today there are 45 countries where such restrictions exist. The UN special rapporteur had said, these national laws are violative of international law. The rapporteur expressed reservations on India’s law, which lacks clarity and precision. The law is too general. Even the FCRA preamble says that Act is about prohibiting those who are against national interest. There is no such thing in the international covenant.
Gagan Sethi said, India’s FCRA seeks answers in straight yes or no – it is very arbitrary, provides wide powers to the state.
Pointing towards prohibitive and regulatory nature of FCRA, the presentation continued, FCRA prohibits foreign funding to officials, electoral people, judges, journalists, audio visual media. The Act further says, any organization of political nature is not allowed foreign funds, which is quite vague. Similarly, it identifies “persons” who would be regulated to include associations. We have made a comparison with our neighbouring countries. Sri Lanka has no law as such, they regulate foreign funds through banks. In Pakistan, a bill is pending since 2012 and most of the provisions are copied from India’s FCRA. Currently, Pakistan regulates the activities of international NGOs. While India does not define NGOs, Bangladesh’s law covers all activities, whether healthcare or human rights. While in India foreign funding registration has to be done once in five years, in Bangladesh it is for 10 years. As for suspension of foreign funding license, Afghanistan has no provision, but the government, if it wants, can suspend the organization’s work. In Bhutan, if a voluntary organization does not work, its license can be cancelled, only a notice has to be given three months in advance. Bangladesh’s law allows cancellation of license under the anti-terror law. There are, in fact, more restrictions in India than the neighbouring countries. Like India, Bangladesh also prohibits foreign funding to government employees, judicial members, etc. In Bangladesh, you cannot appeal to the judiciary against foreign funding cancellation, you have a bureau, to whom you can appeal. In Pakistan, you can go to the sessions court or High Court. There are no penalties in Afghanistan. In Bangladesh there is provision for imprisonment and fine, same is the case with Bhutan. In Bangladesh, NGOs have no freedom. If you write an article, give a TV interview, your organization could be banned.
Gagan Sethi said, the Indian law is far more repressive and vague. Pakistan’s law applies to international NGOs only. In Bhutan, where I have interacted with NGOs, there are only 28 of them. In Sri Lanka there is no law, you only need the bank’s permission, you will have to have a separate account, and the bank will monitor.
Viraj said, broadly, the current ecosystem is bad in India. FCRA is just one part. The registration of civil society organizations is carried out under the same law, societies registration act, where the Port Trust of India, the cricket control body, and the mahila mandali are registered. The roots of the Indian law can be found in 1857, when the British rulers found that many Arya Samaji and Hindu organizations were helping the fight for freedom, hence they needed to be regulated. Currently, there are different government bodies which regulate voluntary organizations in states – they can be charity commissioners or registrar of societies. Things are so bad that to holding an international conference world, you need as permissions equal to, say, setting up a refinery in Jamnagar. You need permissions from the home ministry and the ministry of external affairs, which interact between each other several times ahead of granting visa for the proposed conference. The visa is provided for specified days. Often, foreign nationals land in trouble. An academic, who was in India, attended a food for work conference in Gujarat. She was packed off. She asked for the reason, and she was told to contact the joint secretary in the Indian embassy. She wanted to come in 2016, but was not allowed in. She is banned from India. A Canadian national was deported at the airport for similar reasons. There are no restrictions for a company executive coming to India.
Continued Viraj, those with People of Indian Origin (PIO) card, who have all the rights equal to an Indian citizen except for the voting right, face restrictions for doing NGO work. All this so far has gone unchallenged. I have been asking PIO holders to stand up for an endorsement so that we could file a case. We want to, but can’t, as they are afraid. The situation is the same with challenging the provision in the Lok Pal law, which covers NGOs having grants of Rs 1 crore plus. No one is ready to agree to endorse. All know, we cannot be covered under the law, as we are not public servants. Unfortunately, we cannot tell the nuance to the people. A PIL was turned by the Supreme Court into an investigation into how many NGOs did not file income tax return. There are 16 lakh of them in India. And this led media to declare that NGOs are unaccountable! The situation is such as that it has become impossible to call a Jawaharlal Nehru University professor for any conference. If you call, the intelligence person knocks at your door to find out why he or she was called. Across the country, there is a similar trend. There is a need to map all this.
According to Viraj, our focus currently is too much on the regulatory framework of FCRA. Little do we focus on the shrinking democratic space for civil society. Things are becoming so bad that even the registrar of societies and the charity commissioner are emboldened to lodge an inquiry! It’s like cow vigilantes, who are emboldened because they think that it is their government. Such is the environment. The government is against us because the public is not with us. Navsarjan is an exception. But broad perception is, something is wrong with NGOs, that they are anti-national, anti-development – that is the broad narrative. Large sections of middle classes are not with us, we have little space in the media. There is a need for joint action.
Viraj believed, Vani should work as a trade union, we don’t have bodies like that in India. We started the process. We are documenting. We have held consultations, have held them in several states. There has been some success. We decided to go to the High Court against the Lok Pal law. The matter was resolved because of the industry. There was a lot of pressure. But we have not won any major battle so far. Can’t we act as a sector? Some time back, FCRA of 11,219 NGOs was cancelled. We found that this happened as the data base got corrupted. A was joint secretary suspended because it was found that he “renewed” of certain NGOs because of the software was automatically renewing NGO registration. We found out that the website was hacked. That’s why 25 organizations’ FCRA was first renewed, and then cancelled. This included Navsarjan, Greenpeace, others. One NGO was victimized for the simple reason that Rajdeep Sardesai was on its board.
Wondered Viraj, in this framework, what is the way forward? While legal cases are being filed, there is a need to fix the narrative. Meanwhile, we should push for the corporate side aggressively. We have told this to the home ministry, that we will do it. We will have to convince the donors that they should enter into a contract with us as a company. The home ministry has not replied to us. It has written to the ministry of corporate affairs, which has refused to look into the matter, because it must care for corporate interests. So, we have to fix the ecosystem. Unfortunately, people are scared. When we try to take up an issue, people ask us not to jot their name down. While there is response from smaller NGOs, the big ones do not respond. How does one take this forward? We have held meetings in eight states. We have also held some district-level meetings. A buzz is being created. Positive stories there being published in "Youth Ki Awaz".
Gagan Sethi said, in Gujarat, Janpath needs to take up the issue, endorse creating a trade union of civil societies with a very small amount of subscription, a CSO-type organization. This organization’s cell should have a committed membership base, like Amnesty. It should work for improving the civil society space. Janpath can play a huge role here. It should find out why people are opposed to NGOs, what’s wrong with the public perception? It should advocate for right to dissent and change the narrative.
Concluding, Harinesh Pandya said, we should not limit ourselves to FCRA’s legal framework. There is a need for a strong collective voice. There are compulsions of big organizations. Middle level and small organizations want to fight it out. We have to expand our support base. A CSO-type cell should be set up based on membership of NGOs. A uniform amount should be charged.

*Participants: Harinesh Pandya, Sejal Dave , Sumit Ganguly, Nayan , Asif, Dinesh, Ghatit Laheru Khamir, Juhi Pandy Khamir, Mahesh Pandya, Rajesh Kapur, Avni Sethi, Martin Macwan, Rajiv Shah, Reshma , Gagan Sethi , Biraj Patnayak, Pankti Jog, Ashoke Chaterjee, Gurjeet Kaur, Fahad, Nupur



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