THE CONTEXT: The cancellation of the Foreign Contribution Regulation Act (FCRA) license of Centre for Policy Research (CPR), one of the country’s famed think tanks, on the charges of multiple violations raises several critical questions.

CENTRE FOR POLICY RESEARCH (CPR)

• It is founded in 1973 and is a “non-profit, non-partisan, independent institution dedicated to conducting research that contributes to high quality scholarship, better policies, and a more robust public discourse about the issues that impact life in India”.
• It is a member of the Indian Council of Social Science Research and is recognised by the Department of Science and Technology.
• Its funders have included the government of India, the Bill and Melinda Gates Foundation, and the Ford Foundation, among many others in India and abroad.
• An FCRA registration is necessary to obtain foreign funding. The CPR used to raise more than 75% of its funds from outside India. By suspending its FCRA licence, the government had effectively crippled its finances.

THE FCRA SINCE 1976

• The FCRA was brought during the Emergency in 1976 in a bid to create surveillance regime for the NGOs and put it under the Ministry of Home Affairs (MHA).
• For all such entities receiving foreign funds through foundations, corporate grants and so on, the FCRA license administered by the MHA became obligatory.
• It has not only continued thereafter but has also become a permanent feature for the scrutiny of foreign funds for such entities. The FCRA has been amended four times since then.
• In 2010, the government tightened the FCRA in the wake of anti-nuclear protests driven by some human rights bodies in Tamil Nadu’s Kudankulam that were receiving foreign funds.
• Since the accountability of the voluntary sector in financial matters was questioned, the P.V. Narasimha Rao (1991-96) government had provided a window to them to explain, interact and cooperate with the government.

ISSUES

• Hindering the work of civil societies: Recent charges on CPR such as ‘hurting India’s economic interests’ by alleged ‘mis-utilisation of funds received from foreign sources for organising protests’ are serious. The state surveillance of its activities has been on since 2014. On September 7, 2022 it was subjected to an Income Tax survey and its IT exemption was cancelled on 30 June 2023. It eventually got redressal, both, from the Delhi High Court and the Supreme Court. It is now left with just the Indian Council of Social Science Research (ICSSR) grant since it is one of the 24 ICSSR funded institutes.
• Ambiguities: Entities such as CPR are created by societies registered under the Societies Registration Act, 1860. It permits a group of desirous persons to register a society for literary, scientific and charitable purposes, framing a memorandum of associations and rules for its functioning. A very broad spectrum of societies is registered under this Act, that creates anomalies at times which is used by government for charging NGOs for violating the terms of registration and memorandum of association.
• Funding administration: The concerns regarding the transfer and use of the funds, including administrative heads, are more contentious.  Rigid categorisation often does not work with such bodies as they do not generate a separate administrative grant. When some related expenses are adjusted against foreign grants, it gives the political dispensation an opportunity to ask uncomfortable questions and cancel the FCRA license.
• Increase in foreign funding in India: There has been proliferation of NGOs for varied objectives in recent years. By the 1990s there were efforts to redefine NGOs as voluntary or civil society organisations. However, there are very few funding sources within India and corporate philanthropy has been limited in India. Thus, foreign funding of such entities became routine in India.
• Distrust against the voluntary sector: The love-hate relationship between the government and the NGOs has continued in India with each regime. CPR and such institutions have been under scrutiny for years, irrespective of their emergence as an important segment of international developmental initiatives.

THE WAY FORWARD

• Transparent mechanism: Since the civil societies are a significant part of international and the Indian social life, they must function within the structures of accountability created by the government, which must also be uniform and transparent.
• Free civic space: A free civic space without undue interference from the state or other actors is the need of the hour to enable the citizen to participate in public affairs, express their views, and hold the government accountable.
• Financial accountability: Amending the Foreign Exchange Management Act (FEMA) with some relevant clauses for the social sector could maintain financial accountability without bringing in security considerations for organisations.
• Strengthen oversight mechanism: There is a need for strengthen the oversight mechanisms to prevent any potential misuse of foreign contributions. NGOs should as well be encouraged to provide clear and detailed reports on the utilization of foreign funds, ensuring that purposes and beneficiaries are explicitly disclosed.

THE CONCLUSION:

Advocating for the protection of constitutional freedoms and reviewing stringent laws impacting NGOs is the need of the hour. At the same time, there is a need for raising awareness about the importance of civic space in preserving India’s democracy.

UPSC PREVIOUS YEAR QUESTION

Q. Can Civil Society and Non-Governmental Organisations present an alternative model of public service delivery to benefit the common citizen? Discuss the challenges of this alternative model. (2022)

MAINS PRACTICE QUESTION

Q. The constitutional freedom of India’s diverse and vibrant civil society is under challenge. Analyse this statement with regard to recent cancellation of Foreign Contribution Regulation Act (FCRA) license of civil societies.

Q. Government wielding of Foreign Contribution Regulation Act (FCRA)as a blunt instrument shrinks vital space for NGOs, civil society. Comment.

SOURCE: https://thewire.in/law/fcra-should-be-an-instrument-of-financial-accountability-not-of-security#:~:text=FCRA%20Should%20Be%20an%20Instrument%20of%20Financial%20Accountability%20Not%20of%20Security,-law&text=Amending%20the%20Foreign%20Exchange%20Management,in%20security%20considerations%20for%20organisations.

THE CONTEXT: Recently, the Government of India has cancelled the Foreign Contribution (Regulation) Act (FCRA) licence of the Centre for Policy Research (CPR) less than a year after suspending the FCRA licence. A free civic space regulated under constitutionally guaranteed principles is the essence of democracy, however, the recent instance shows that civil society is under threat in India.

ISSUES:

• Restraining civil liberties: The recent curb of financing of civil society denotes eroding of civil liberties in India. The government has given the justification that CPR publications are similar to current affairs programming which is prohibited for an entity using FCRA funds which is quite unreasonable.
• Curbing dissent and alternate views: As a premier think tank, theCPR has been providing an ecosystem of governance and policymaking where multiple stakeholders through informed debates acts as the hallmark of a democracy. A decision to effectively shut down such an institution by crippling its finances is an indication of curbing dissent and free flow of knowledge and ideas.
• Using FCRA as a weapon: The move also fits into a broader pattern of the state wielding the FCRA as a weapon to silence entities whose work is not aligning to the ruling government like those working on environmental issues, civil liberties, and human rights. The FCRA itself has emerged during the Emergency to address the concern of foreign governments interfering in India’s internal affairs by channelling funds through NGOs. Since then, it has been amended by successive governments, with the provisions becoming more stringent.
• Malign international image: The International Commission of Jurists has raised concern regarding the latest amendment of FCRA in 2020 and denounced it as “incompatible with international law”. It warned that it would “impose extraordinary obstacles on the capacity of civil society actors to carry out their important work”. When the U.S.-based non-profit, Freedom House, in its Democracy Index, downgraded India to an “electoral autocracy”, a reason it cited was erosion of civil liberties. Though, the government is hypersensitive to rankings on international indices, yet unwilling to acknowledge the link between perception and reality.

THE WAY FORWARD:

• Alternate funding: There is a need to promote alternate funding for civil societies through Local Resource Mobilization (LRM) and corporate funding. It can also be done by charitable funding by pooling resources for a more significant impact.
• Enact legislation: The Union Government should draft a comprehensive model legislation covering both Trusts and Societies in lieu of the existing laws on Societies, Trusts, Endowments and Charitable Institutions etc. The government should recognize the importance of a strong civil society for the effectiveness of key laws as Right to Information Act and National Food Security Act.
• Establish system of accreditation: A system of accreditation or certification of voluntary organizations which seek funding from government agencies should be established. Government should take initiative to enact a law to set up an independent body to take up this work.
• Collaboration: It is essential that the Government and the civil societies should collaborate and work together where feasible. Such partnership may also include other entities such as panchayati raj institutions, municipalities, academic institutions, and private sector organizations.
• Stakeholder consultation: There is a need to devise proper consultation through a formal process of interaction at the Centre, State and District level. Stakeholder consultation acts to tackle complex interventions where sustained social mobilization is critical over the long term.
• Transparency and Accountability: Civil society organisations as well should be transparent in their functioning and accountable to the people they serve, to gain their trust and support.

THE CONCLUSION:

The recent shutting off the finances of civil society organisations is an example of civil liberties erosion which tends to amplify the narrative of democratic backsliding. There is a need to promote a vibrant civil society and institution building in the country to protect human rights seeking truth, justice, and reparations.

UPSC PREVIOUS YEAR QUESTION

Q. Can Civil Society and Non-Governmental Organisations present an alternative model of public service delivery to benefit the common citizen? Discuss the challenges of this alternative model. (2022)

MAINS PRACTICE QUESTION

Q. A free civic space regulated under constitutionally guaranteed principles is the essence of democracy.  Examine the statement in light of recent cancellation of Foreign Contribution (Regulation) Act (FCRA) licence of the Centre for Policy Research (CPR).

SOURCE: https://www.thehindu.com/opinion/editorial/democratic-backsliding-the-hindu-editorial-on-the-state-wielding-the-fcra-as-a-weapon/article67762270.ece

THE CONTEXT: The progressive and anti-communal civil space which is considered as last bulwark for India’s democracy is being targeted by the state. Civil society from NGOs to grassroots activist groups to social movements to unions is being undermined which is leading to erosion of democratic institutions.

MORE ON THE NEWS:

• There is an attempt to limit the civic space of several organisations relying on domestic and foreign donations. These organisations include, Amnesty International, Centre for Equity Studies, Citizens for Justice and Peace and Act Now for Harmony and Democracy (ANHAD), among significant others.
• The organisations were viewed as being either neutral, moderate, or strong regarding their views on minority rights, Dalit rights, Adivasi (tribal) rights and equity promotion.
• Recent findings suggest that the highest number of attacks were against organisations actively fighting against communalism. These would include organisations such as Citizens for Justice and Peace (CJP), Amnesty India, Oxfam, Centre for Equity Studies and Lawyers Collective.
• Moderately attacked institutions are those whose activities have been severely curbed because of multiple attacks by the state. They include the Centre for Policy Research (CPR) and a significant non-governmental organisation (NGO) with American funding working in the non-communal space.
• Moderately attacked institutions also include fiercely anti-communal NGOs such as ANHAD. Some of the organisations in this area are even neutral on the anti-communal issue. An analysis of the moderate section suggests that the civic space has shrunk to such an extent that the Indian state is not even leaving a non-communal organisation such as the CPR alone. One of the allegations against the CPR appears to be that it had some connections with Adivasi rights movements that impacted the mining interests of the tycoon Gautam Adani.
• Institutions that have been impacted by relatively low levels of attacks are generally not active in the anti-communal area, even though they may be pursuing significant human rights causes. The organisations such as Navsarjan, which is a leader in Dalit rights, and Save The Children’s work on child rights are less under attack compared to the others.
• It is also found that the disciplining instruments deployed by the state can impact organisations. Greenpeace, for example, has transitioned from one that faced high intensity attack to one that now faces a low level of attack by our definition.

ISSUES:

• Misuse of laws: The state is using the range of instruments to limit the civic spaces such as misusing of laws from the use of draconian anti-terror Unlawful Activities (Prevention) Act (UAPA) to FCRA and other laws to keep activists behind bars.

1. UAPA: The draconian anti-terror Unlawful Activities (Prevention) Act (UAPA) has been criticized for being misused by authorities to target human rights defenders, activists, and dissenters. Critics argue that the act has been used to stifle free speech and to quell any form of peaceful protests.

2. FCRA: The Indian government’s crackdown on foreign funding for civil society organisations using the Foreign Contribution Regulation Act (FCRA) continues to remain a cause for concern. The FCRA, which regulates the acceptance and utilisation of foreign funds by Indian NGOs, has been amended several times in recent years. These amendments have made it more difficult for NGOs to receive foreign funding and have given the government greater powers to monitor and regulate NGOs. One of the main reasons cited by the government for tightening the FCRA is to prevent ‘foreign influence’ over civil society organisations. However, critics argue that the government’s real intention is to suppress dissent and limit the activities of NGOs working on issues such as human rights, the environment and social justice.

3. Prior Reference Category List: Apart from the FCRA provisions, foreign donors are also intimidated by a Prior Reference Category List. It consists around 80 internationally reputed donors who are monitored and intimidated for pursuing any human rights related causes.

4. PMLA: The amendments, in 2019, to the Prevention of Money Laundering Act, 2002, brought through the Finance Act enabled the Department of Revenue to work with a broader definition of proceeds of crime. This has resulted in the attacks on NGOs and Opposition politicians by the Enforcement Directorate.

5. Income tax act provisions: Domestic funding of non- and anti-communal NGOs is also under siege. Sections 12A and 80G of the Income-Tax Act provide tax exemptions for NGOs and donors, respectively. The 2020 amendments now make renewals of 12A and 80G certificates mandatory every five years. And donor data including their PAN card numbers must be made available to the Ministry of Finance. These provisions enable the state to intimidate domestic donors who wish to fight communalism and crony capitalism. The state uses income-tax surveys as a way of collecting data that can be used to further escalate and institute more cases either by the CBI or the Tax Department.

• Curbing dissent: The Indian government has also used other tactics to repress civic freedoms, including the use of sedition laws and the criminalisation of peaceful protests. Sedition laws have been used to arrest activists critical of the government and peaceful protests have been met with violence and repression by the police. Civil society organisations and activists critical of the government have been silenced, and the space for dissent has been severely curtailed.
• Threatens press freedom: The amendments in the above-mentioned laws were announced without adequate and meaningful consultation with journalists, press bodies and civil society It severely threatens press freedom and empowers the government to be the sole arbiter of truth on the internet.
• Undermines Human rights: Furthermore, the use of sedition laws and the criminalisation of peaceful protests are clear violations of human rights. The right to freedom of expression and assembly is enshrined in international human rights law, and the Indian government’s actions to repress these rights are a clear violation of its obligations under international law.

THE WAY FORWARD:

• Repeal laws: To improve the situation in India, the government must repeal laws that restrict the ability of civil society organisations to operate freely. For example, Government must stop the use of sedition laws to target activists critical of the government and ensure that peaceful protests are allowed to take place without fear of repression.
• Protect rights: Civic freedoms, including the freedom of expression, association, and assembly, are essential for a vibrant and functioning democracy. There is a need to recognise and protect these freedoms by social and political forces who repose their faith in the Constitution.
• Ensuring democratic principles: The Indian government’s actions to repress civic freedoms are problematic and unacceptable in a democratic society. There is a need to take adequate steps to ensure democratic principles. Mobilizing anti-communal and progressive civic space to safeguard democracy.
• Engaging with stakeholders: The Indian government must engage with civil society organisations and activists to address their concerns and work towards building a more inclusive and democratic society. The government must also work towards promoting a culture of respect for human rights and the rule of law in the country.
• Opposition stand: The Opposition should take stringent steps apart from fighting like a single party. It will also need to mobilise the anti-communal and progressive civic space in its favour to save democracy. For example, Recently, “Eddelu Karnataka” (Wake-up Karnataka) or similar social movements in Telangana, had mobilised the anti-communal civic space and secular and progressive social and political forces came together in both these States.

THE CONCLUSION:

A free civic space regulated under constitutionally guaranteed principles is the essence of democracy. There is a need to take adequate steps to preserve this unusually diverse and vibrant civil society.

UPSC PREVIOUS YEAR QUESTION

Q. Though the Human Rights Commissions have contributed immensely to the protection of human rights in India, yet they have failed to assert themselves against the mighty and powerful. Analysing their structural and practical limitations, suggest remedial measures. (2021)

MAINS PRACTICE QUESTION

Q. Constitutional freedoms are under siege as India’s diverse and vibrant civil space continues to be targeted by the state. Critically Examine.

SOURCE: https://www.thehindu.com/opinion/lead/civil-society-under-siege-in-india/article67706998.ece#:~:text=India%20is%20lucky%20to%20have,their%20faith%20in%20the%20Constitution.

CONTEXT: The News Click case flags a disturbing trend to misuse anti terror laws to undermine individual and media rights.

More on the news:

Charges put on the founder of News Click:

• Terrorism
• Hatching a conspiracy to undermine the country’s security
• Disrupting the 2019 parliamentary polls
• Causing disaffection against the government
• Disrupting essential services.
• Infusion of foreign funds illegaly into India to disrupt sovereignty and territorial integrity and threatening its unity and security.

The FIR was filed under:

• Unlawful Activities (Prevention) Act, 1967: Sections 13 (unlawful activities); 16 (terrorist act); 17 (raising funds for terrorist acts); 18 (conspiracy); 22 (C) (offences by companies, trusts)
• IPC Sections: 153A (promoting enmity between different group) and 120B (criminal conspiracy).

Charges based on:

• It refers to a conspiracy based on purported email exchanges to show Arunachal Pradesh and Kashmir as not part of India.
• Remittances by American businessman is being shown as illegal finding from China that is alleged to be used for propaganda and undermining country’s security.
• It refers to stretching the farmers’ agitation of 2020-21 and thereby disrupting supply of services and other essential supplies.

Issues arising in the case:

• Broad definition of terms in UAPA: It can be misused by criminal to escape with misinterpreting the definitions of the terms in the Act and by tweaking of the law.
• Used to suppress dissent: The case is being used to suppress dissent by confining the dissenters for prolonged time.
• Undermining media independence: Misuse of UAPA tends to send a chilling message to wider media fraternity which leads to undermining their independence.
• Electoral politics: It has been alleged that there the case is being misused by highlighting the issue of ‘chinese conspiracy’ for electoral politics.
• Criminalising legal services: There is alleged creation of shell companies by two telecom companies for funding terror. By mentioning of a lawyer in creation of legal network for these companies police seems to criminalize legal services.

Regulation of foreign funding:

• Foreign Contribution (Regulation) Act (FCRA) was enacted during the Emergency in 1976 amid apprehensions that foreign powers were interfering in India’s affairs by pumping money into the country through independent organisations.
• An amended FCRA was enacted in 2010 to consolidate the law on utilisation of foreign funds, and to prohibit their use for any activities detrimental to national interest.
• The law was amended again in 2020, giving the government tighter control and scrutiny over the receipt and utilisation of foreign funds by NGOs.

What is a shell company and what are the provisions for its regulations?

• A shell company is a business that is created to hold funds and manage another entity’s financial transactions. In most cases, these businesses merely have assets on paper and not in reality. 

Acts related to its regulations:

• Benami Transactions Prohibition (Amendment) Act, 2016: This Act grants the government the authority to seize benami assets. These are the assets held in the name of another person or fictional person in order to avoid taxation or hide unaccounted money.
• Prevention of Money Laundering Act (PMLA), 2002: It is considered as a offence of money laundering if the money has not been taxed and passed through a shell company. It considered offence under under Section 3 of the PMLA and is punishable by 3 to 7 years in prison and a fine.
• Companies Act 2013: Section 248 of the Companies Act 2013 empowers the Registrar of Companies to strike a company off the register of companies if
• It fails to commence business within one year of its incorporation
• It fails to carry on business for two financial years
• Has not applied for dormant company status.

THE WAY FORWARD:

• Independent probing: For quick and efficient resolution, there is need for independent probe of the case without any bias and involving any electoral politics.
• Ensure media independence: Media is considered as fourth pillar of democracy and its independence is necessary to ensure democratic principles.
• Taking Dissent positively: It is necessary in a democratic country to take dissent and criticism positively for ensuring accountability and keeping check on the institutions.
• Regulation of foreign funding: Foreign funding is to be regulated properly so that legitimate activities of the organisations are not hampered.

THE CONCLUSION: Free media is the need of the hour to make the government accountable for its action and at the time there should also be a check on the media that it doesnot act in a way to disrupt the unity and integrity of the nation.

PREVIOUS YEAR QUESTIONS

Q.1 Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on Right to Privacy. (2017)

Q.2 “Recent amendments to the Right to information Act will have profound impact on the autonomy and independence of the Information Commission”. Discuss. (2020)

MAINS PRACTICE QUESTION

The media is the parliament of citizens. In the light of this statement examine the invocation of the recent terrorism charges on media organization in the name of national security.

Note: Please refer to 5^th October Mains focus for more on this news.

SOURCE: https://www.thehindu.com/opinion/editorial/newsclick-non-case-the-hindu-editorial-on-the-strange-case-of-a-terrorism-fir-without-a-terrorist-act/article67397093.ece