Why Routes of Funding Matter: Reading the FCRA Statute

In September 2020, Amnesty International announced that it has been forced to halt its operations in India, owing to the governmental witch-hunt of human rights organizations. This involved an unexpected act from the government to use an archaic draconian tool from the era of the Emergency – the Foreign Contribution (Regulation) Act, 2010 (“FCRA”). The legislation sought to regulate foreign funding for activities that disturbed India’s ‘internal security’. However, over time, it has been used to extensively clamp down on organizations demanding accountability and justice for human rights violations in India (read more here and here). 

The Government of India froze Amnesty International India’s bank accounts on alleged violation of the FCRA due to illegally obtaining foreign funds. However, attacks on Amnesty by the ruling government are not novel occurrences. Amnesty’s involvement in advocacy concerning the Delhi Riots 2020, and the various human rights violations in Kashmir, have been subject to scrutiny where they have been allegedly hounded by government officials, as well as right-wing student groups such as the Akhil Bhartiya Vidyarthi Parishad. While Amnesty has openly stated that their mechanism of raising funds for their activities was purely via domestic channels and contributions from Indians, such crackdowns are not novel occurrences for those engaged in human rights advocacy in India.

Months after the clampdown on Amnesty, the National Investigation Agency (“NIA”) conducted raids on various non-governmental and civil society organisations in Kashmir, Bangalore and New Delhi, for alleged “terror funding” in the region. Similarly, earlier in 2019, human rights advocates, Indira Jaising and Anand Grover were targeted by the Central Bureau of Investigation, who undertook searches at their residences and workplaces. This too was on account of receiving foreign aid and being in violation of the FCRA. These incidents not only highlight the pitiable plight of the right to dissent in India, and the crackdown on those who do, but also showcases the problematic rhetoric of using the consistent discourse of “terrorism” to trample the protection of certain fundamental rights in the region. With this backdrop, the following section of this piece shall examine how the FCRA is violative of international human rights law.

The FCRA’s Human Rights Implications

The framework of the FCRA has widened since 2010. In fact, as of 2020, the Foreign Contribution (Regulation) Amendment Bill was recently passed with absolutely no stakeholder consultation. The International Commission of Jurists rightly noted that the Bill has to be read within the larger discourse of sedition and threats against civil society in India, and the culture of stigmatization. Be it the 2010 framework, or the amended 2020 Bill, they both fail to meet the threshold for permissible restrictions under international law, under the principles of legality, legitimate aim, and necessity. 

The first prong, while considering ‘legality’, requires the law to prescribe the specific conditions on which a right may be restricted, and must not allow for unfettered discretion (General Comment 34, ¶¶ 21-23). Given this, the FCRA’s operation has been subject to a great deal of scrutiny on account of its over-breadth, vagueness, and its potential for abuse, considering the absence of any such specific conditions. It seems apparent that the framework also raises pertinent issues under Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”), which realizes the right to “impart information and ideas of all kinds,” through various mediums. General Comment 34 expressly warns us that restrictions on the freedom of expression may not put the right itself in jeopardy. 

While considering the aspect of the existence of a ‘legitimate aim’, states must showcase that the restriction for obtaining foreign funds (and/or their utilisation) must impinge on considerations such as national security, public order, public health or morals, or the protection of the rights/freedoms of others. It has been realised that these grounds must be interpreted strictly, where the state party must prove the precise nature of the threat (see here and here).

With regard to the FCRA, it is clear that the purpose of the legislation itself is to prohibit acceptance and utilization of foreign contribution for “any activities detrimental to the national interest.” However, it would be difficult to argue that the ICCPR conflates ‘national interest’ and national security, given that political, economic, or governmental interests are distinguished from matters concerning security of state (or conceivably even) public order (see more here). It has also been realised in Lee v. Republic of Korea, that there must be the necessity to avert a real (as opposed to a hypothetical) danger to national security and democratic order (¶ 7.2). The ‘real’ nature of the threat needs to be unveiled in the context of the organisations being targeted – civil society, political action groups, research organisations, and human rights advocacy groups. The chilling effect of the FCRA cannot go amiss, given that their engagement is primarily oriented towards legitimate public interests and advocacy.

For determining ‘necessity’, there must exist a degree of proportionality in terms of the aims of the FCRA and its blanket application to muzzle projects, reports, and advocacy that go against its vaguely worded mandate. Notably, the Supreme Court of India has recognised the vagueness of the term ‘political interests’ while addressing Rule 3(v) of the FCRA Rules, which addresses organizations to be of a “political nature.” The Court restricted the applicability of the term to refer to organisations engaged in active politics or party politics, as opposed to organisations that habitually employ common methods of political action (¶ 22). Thus, social activist groups, and NGOs would fall out of such ambit. 

Concluding Thoughts

Maina Kiai, UN Special Rapporteur, observed in 2016 that civil societies are protected under Article 22 of the ICCPR, and they have the right to form associations, and this includes the right to receive foreign funding. Most human rights organizations run as non-profit entities and depend on external funding for their operations. Given the nature of these human rights groups, projects undertaken, and activism espoused, foreign funding is extremely vital for their engagement in promoting a discourse concerning marginalized communities, or those in zones of conflict. Particularly where their advocacy would not be circumscribed by the ruling party’s political aspirations. 

Thus, the clampdown on organisations such as Amnesty International, and the J&K Coalition of Civil Society, highlights how the issue concerning the FCRA transcends beyond mere funding for operations. Rather, it is wielded as a potent tool to strike off the functioning of activities and organizations that do not showcase the government in a favorable light. As of March 2020, it has been reported that over 6,600 NGOs in India have had their FCRA licenses cancelled (see here for all state-wise cancellations of FCRA licenses). Beyond these organizations, the clampdown on dissent in India seems to be snowballing into something quite sinister. The consequences of the continued operation of the vaguely worded FCRA seems to encompass activities that are of a “political nature” — which effectively can be interpreted to be a muzzle on any sort of human rights advocacy that opposes the Indian government’s treatment of ethno-religious minorities in the country.

The human rights discourse and obligations therein only go so far in ensuring respect and protection for standards such as the freedom of speech and expression and the right to form associations. Given that India currently bears reservations in terms of the enforcement mechanisms associated with the ICCPR, its commitment seems to be outward rhetoric without enough flesh to adequately protect such organisations and their policies. Considering this, without concrete legislative steps, robust stakeholder consultation, and public debate, an overbroad statute such as the FCRA would be unable to account for the particular aims of civil society and action groups in India that go against the dominant narrative of the ruling party.

Mahima Balaji is the Director of the Jindal Forum for International and Economic Laws.

Images: AP (Altaf Qadri) and Amnesty International (modified by Mahima Balaji).

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