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Closing The Tap On Dissent

On 20 january, the Delhi High Court handed a decisive victory to Greenpeace — enfant terrible in a world that swears by development and growth — and, perhaps, to the very freedom of speech and expression in India. The international non-governmental organisation (NGO) had been fighting the Ministry of Home Affairs (MHA) on multiple fronts. In June 2014, the MHA froze the bank account of Greenpeace India for receipts of foreign funds. More recently, on 12 January this year, one of its activists, Priya Pillai, was offloaded from a London-bound flight, where she was scheduled to speak with British parliamentarians on environmental violations by London-listed Essar Energy, under provisions that are usually applied to suspected terrorists.

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Its offence? Greenpeace has been at the forefront of campaigns against coal-fuelled power projects, genetically modified crops, nuclear power and developmental projects that the Indian government is keen on. Its attempt to mobilise people affected by local projects began to be branded as an anti-national activity. The high court, however, chose to see it differently. “All NGOs are entitled to have their points of view and merely because their views are not in consonance with those of the government’s does not mean they are acting against national interest,” the court said, ordering the unfreezing of Greenpeace India’s account.

What happened with Greenpeace is not an isolated case. On 30 April 2013, the Indian Social Action Forum (INSAF), a social action forum in India that resists globalisation, combats communalism and defends democracy, received a notice from the home ministry stating that its registration under the Foreign Contributions Regulation Act, 2010 (FCRA) had been suspended. Two days later, on 2 May, another letter followed demanding answers to 30 questions such as its nature of activities and sources of funding, almost as an afterthought. This was enough to send the NGO network of grassroots members who receive much of their funding from abroad into a tizzy.

The FCRA — a law to check terrorism funding and money laundering — allows the government to take action after giving reasons for the same and allowing the other party a chance to present its defence. With none forthcoming, INSAF took the matter to court. In September 2013, the Delhi High Court ordered the home ministry to unfreeze the accounts, dismissing the government’s stance that the law only said the government ‘may’ give reasons. While INSAF came out unscathed, the question is why did the government take such a drastic step? Civil society speculates that the government’s action could have been a reaction to the protests coordinated by INSAF against the Asian Development Bank-funded projects in India, or for hosting Jennifer Robinson, the acclaimed human rights lawyer who represented WikiLeaks founder Julian Assange, in India.
The 'Draconian' Bits In The FCRA
  • Registration should be renewed every five years. No provision for ‘deemed registration’ if application for processing is delayed
  • Government can prohibit specific donors or countries from which foreign funds should not be received
  • Government may cancel registration on grounds such as providing false information, not  filing returns or acting against public interest
  • FCRA 2010: To regulate the acceptance and utilisation of foreign contribution by certain individuals, association and companies, and to prohibit acceptance and utilisation of foreign contribution or foreign hospitality for any activities detrimental to national interest
  • Anybody receiving foreign contributions ought to be registered under the Act. Any donations made out of such contributions can also be made only to those registered

But by then, every protest was anathema to the UPA-II government, having seen how the protests by locals against Vedanta and Posco snowballed to the point of halting their respective projects. So the government resorted to choking funding for all such movements that stood in the way of  its idea of development. In July 2012, it had already frozen FCRA accounts of the Centre for Promotion of Social Causes (CPSC), a body that was involved in the anti-nuclear protests in Kudankulam, Tamil Nadu — again without giving a specific reason. When the Right to Information Act (RTI )was invoked to force out reasons, it was dismissed citing confidentiality, says Sanjay Parekh, a lawyer for CPSC. In July 2014, the court ordered the unfreezing of its accounts.

Curtailing Dissent
Civil society activists — organisations such as Greenpeace and INSAF, which usually stand on the other side of the development agenda as representatives of those whose livelihoods are impacted — have long been crying hoarse about the government’s tactics to smother dissent. But the crackdown on activist NGOs by the government has generated barely a squeak of sympathy from the public at large.

This, despite their commendable contribution to the voluntary sector. The movements to implement RTI as well as the National Rural Employment Guarantee Scheme were led by such organisations. Street vendors, the organised sector — all benefited from laws that were compelled to be passed by civil society movements. In 2012, the Ministry of Statistics and Programme Implementation estimated that the non-profit sector engaged 18.2 million workers who generated incomes of  Rs 72,792 crore in services rendered.

Many of them are funded abroad — grants from development arms of western governments as well as international bodies like Amnesty International and Action Aid totalled Rs 10,963 crore in 2012-13, according to a statement made in Parliament. In comparison, the Indian government budgets for roughly Rs 1,000 crore a year on average for grants. This is on paper; what the sector actually receives is far less. According to a 2013 report by the Asian Council for Human Rights, one out of every seven rupees (or around 15 per cent of the grants) goes back to government officials as bribe.

Now, even foreign aid is beginning to dry up. Last year, HIVOS, an international development organisation, brought in 4 million euros. At its peak a few years ago, it received 11 million for addressing issues like literacy, nutrition and maternal mortality. Ingrid Srinath, head of HIVOS India Advisory Services, says starting 2016, there will be a severe crunch due to the Indian government’s restrictive policies for the sector. Besides, she says, the aid organisations are shifting focus to other needy countries.

Donors are becoming more reluctant, says an official (who did not want to be named) of a leading Indian corporate house, which supports NGOs as part of its corporate social responsibility (CSR) programme. He cites examples of organisations working in naxal-affected areas like Chhattisgarh. Harassment by Intelligence Bureau officials (or local police in the name of IB) is routine, he says. So, many of them have restricted their focus to work that does not involve confrontation with the government, in an act of anticipatory censorship.
On 15 January, the Reserve Bank of India sent out a ‘secret circular’ to banks asking them to not process inflows from 10 organisations, including Greenpeace International and Climate Work Foundation, unless the donations had the ‘prior approval’ of the home ministry.  But some of the organisations on the list have already been effectively barred from sending in funds for want of approval by the government. Even disaster relief funds to the tune of hundreds of millions of euros were sent back. Often, funds from international organisations are refused on grounds of their support to Indian organisations protesting against nuclear power and other issues, say activists.

The usual response to concerns about the impending financial crunch is that with a CSR spend of 2 per cent of profits by the corporate sector being made mandatory — an amount that consultancy firm EY estimates will be around Rs 22,000 crore in FY15 — local organisations will not be starve of funds. Activist organisations are, however, not optimistic about getting funding from corporates as, very often, they work at cross purposes. While corporates as a rule deploy their CSR spends on specifically determinable projects, much of activist organisations’ work involves making people aware of their rights, mobilising them to protest meaningfully as a group, and campaigning for reforms that would benefit weaker sections.

Other than the funds crunch that the sector is likely to run into, there’s another impediment awaiting the sector later this year. The 2010 Act requires NGOs to renew their registration every five years. For a large chunk of the 43,000-odd NGOs with foreign registration, their registration expires this September. Even as many doubt the severely understaffed MHA’s ability to process all these applications in the required 90 days, there are concerns about whether registration will be withheld to all the ‘nuisance’ NGOs. Moreover, unlike under the pre-2010 regime, approval will not be presumed if the ministry does not respond within the 90-day time frame.

In a way, you could compare the work of these NGOs to what industry bodies like CII and Ficci do, except that their membership does not consist of corporates who are adequately visible anyway. “The government goes around the world campaigning for foreign direct investment . If foreign money is good, then why should they have a problem if it is coming to NGOs,” asks Anil Chaudhary, chief convenor, INSAF.
Possibly because some NGOs are inconvenient hurdles to a state that is obsessed with quarterly growth rates and industrial production indices. So those who take the government on are fit cases for stifling.

Leaked Reports And Conspiracies
A few weeks after the BJP-led government took charge, an explosive two-year-old ‘leaked’ Intelligence Bureau report began doing the rounds — two to three per cent of India’s GDP was being lost due to “concerted efforts by select foreign-funded NGOs to take down India’s development projects”, it claimed. Coming at a time when India was reeling under a slump in investment (which, many would argue, was due to the near absent decision-making in the UPA government), the report made the headlines.
What The Secret IB Report Alleges
  • Eight out of 11 NGOs that protested against the Kudankulam nuclear plant were primarily funded by European donors, receiving Rs 80 crore during FY07-FY11
  • Numerous pan-India organisations coordinated radiation leak studies at Tarapore and Rawatbhatta, stalling of nuclear plant at Perignom in Kerala, and protests in these areas
  • Anti-coal activists, led by Greenpeace, have targeted Indian coal projects. “Greenpeace aims to fundamentally change the dynamics of India’s energy mix by disrupting and weakening the relationship between key players, including Coal India,” says the report
  • Greenpeace financed studies by the Tata Institute of Social Sciences to study health pollution and other aspects of the Mahan project, funded a documentary film by Paranjoy Guha Thakurta on the harmful effects of coal mining at Singrauli in MP, funded an IIT Delhi study that found that water diversion to a project had reduced irrigation potential by 40 per cent and financed activists for  attending international seminars on coal strategy
  • Greenpeace has also declared that Korba, Mundra and Raigad coal projects would be targeted next to mobilise people-centric protests mobilised funding from Germany as well as filed PILs in India against genetically modified crops
  • Resistance to Posco and Vedanta Aluminium projects in Orissa by bodies like Action Aid and Survival International led to Vedanta’s investors in England withdrawing from the company
  • Activism against extractive industries, mainly oil, in the North-east
  • Planned projects against e-waste by Indian IT companies, Par Tapi river-linking project, Delhi-Mumbai Industrial Corridor project  and palm oil exports

The report, or more specifically, the way it reasoned that declining growth was due to protests, was, however, quite shoddy. It alleged that foreign donors “cleverly disguise their donations as funding for protection of human rights”. It even accused them of “leading local NGOs to provide field reports that are used to build a case against India and serve as tools for the strategic foreign policy interests of western governments”.

What are these field reports and who are the Indian recipients? Tata Institute of Social Sciences, it alleged, was funded by Greenpeace to study health pollution and other aspects at the Mahan coal project in Madhya Pradesh. Greenpeace was also accused of supporting and screening a documentary by veteran journalist Paranjoy Guha Thakurta on the harmful consequences of coal mining in that region. IIT Delhi was similarly commissioned to study how water diversion to coal-fuelled power projects resulted in a 40 per cent drop in the irrigation potential of agricultural land in the Wardha region of Maharashtra. The report also accused Greenpeace of funding its activists to attend international coal conferences to discuss ‘funding for people-centric protests’. The list goes on.

“Whatever is in the IB report is factually correct,” says Mathew Cherian, CEO of HelpAge India, an organisation that facilitates care for the old and abandoned. “The problem is with the way they arrived at their conclusions”. That is, how can one argue that a study on the negative consequences of a development project is against national interest. “These organisations (NGOs) are only asking the government to implement the laws that they have themselves framed (such as those for protecting the environment, or the plight of street children). Just because it shows India in a bad light globally, does one keep silent,” questions Cherian.

This report is frequently touted as evidence of threats from foreign-aided organisations. And it isn’t surprising that it coincides with the more egregious abuses of the FCRA, a law ostensibly aimed at curbing terrorism funding, money laundering and other anti-national activities. The rules under the FCRA give the government permission to prevent money received by organisations to be utilised for activities against the ‘public interest’. The problem is that none of the offences highlighted in the report can be characterised as an anti-national activity. “The FCRA is actually being used to clamp down on organisations that raise issues like climate change, nuclear liability and environmental protection,” says Samit Aich, executive director, Greenpeace India.

Even among home ministry officials, accusations of engaging in anti-national activities by NGOs are bandied about with little substance. “Give us one example where civil society organisations have been caught in terrorist activities or money laundering,” asks Harsh Jaitly, CEO, Voluntary Action Network of India. He suggests doing so shouldn’t be difficult for the government as it has laws such as the Prevention of Money Laundering Act and a vigorous tax regime that supposedly keeps watch on all inflows of money into the country. But when BW | Businessworld asked Joseph Lui Kham, deputy secretary, MHA, for examples of anti-national activities that NGOs were engaging in, he said the ministry did not have such a list. However, he continued to insist that NGOs were engaging in money laundering and even stopping development with help from foreign organisations.

But then again, don’t Indian corporates also facilitate money laundering or misuse of funds? Are they pursued with an iron fist? “Anybody working against public interest should be stopped,” says Lui Kham. But what is public interest, and who decides what is in the interest of the public? He says it is the discretion of ministry officials, and that cancellations are based on “intelligence and information from various reliable sources” who he could not name.

“The government seems to be confusing the interest of its own survival with public interest,” says Supreme Court advocate Kabir Dixit, who along with Sanjay Parekh is challenging the constitutionality of the contentious provisions of the Act in the Supreme Court on behalf of INSAF. He contends that the Act strikes at the very root of two of the fundamental rights granted to all citizens by the constitution — that is, the freedom of speech and the freedom to form an association.

Many of the restrictions under FCRA relate to the use of foreign funds for engaging in activities of a political nature (curiously, both the Congress and the BJP were censured by the Delhi High Court in March 2014 for receiving foreign funds in violation of the Act). The Act defines an organisation of a political nature as one which has “avowed political objectives” or which participates in political activities. A political activity is, however, not defined. So, anything that forms a threat to the politics of the ruling party gets interpreted by the government as an activity of a political nature. This effectively dissuades a host of activities — from gender equality to livelihood, all of which are political in nature, says Rajesh Tandon, founder and president of Participatory Research In Asia. He says his advice to people looking to start an NGO is start not-for-profit companies instead (regulated by the Ministry of Corporate Affairs).
The Contribution Of Development Organisations
Often charged with hindering development, civil society has made some key contributions. A few of its endeavours that resulted in legislation...
  • Mahatma Gandhi National Rural Employment Guarantee Act – Providing employment at minimum wage to rural households for 100 days a year
  • Right to Information – An Act that ensures accountability of the government
  • National Food Security Act – Provides access to adequate quantity of quality food at affordable prices. Makes available rice at Rs 3 a kg, wheat at Rs 2, coarse grains like millet at Re 1
  • The Right of Children to Free and Compulsory Education Act – Free education for children from ages 6 to 14
  • Environment – A number of rules incorporated under the Environment Protection Act, 1986 like Hazardous Waste (management and handling) Rules, 2008 and Plastic Waste (management and handling) Rules, 1999 to check pollution
  • Protection of Women from Domestic Violence Act — For victims of violence of any kind within the family

The problem with FCRA is in its implementation, says chartered accountant Sanjay Patra, executive director of Financial Management Service Foundation. For example, he says, “All the cases against the MHA show that the accused has never been heard,” putting the Act in the league of draconian laws like the much-abused and now scrapped Prevention of Terrorism Act (Pota). This, despite the fact that FCRA clearly requires the government to give parties an opportunity to be heard.

The NGOs, on their part, would do well to focus on setting their books in order. In September 2014, the MHA suspended FCRA registrations of around 10,000 NGOs for non-filing of accounts. “Many NGOs do a lot of good work, but don’t focus on the accounting and documentation part,” says chartered accountant Joselyn Martin, explaining why many of the NGOs fall foul of tax and FCRA rules. He suggests an amnesty scheme for these NGOs, which will allow them to file returns without paying a penalty. “It will allow them to come clean and start afresh,” he says. “Plus, the government will have a better database of all the NGOs receiving foreign aid.”

In a way, perhaps, a constitutional challenge to the Act could be the light at the end of the tunnel. The rules to curb foreign donations were said to have been originally brought in just before the Emergency by then prime minister Indira Gandhi to choke foreign funding to her political opponent Jaiprakash Narayan. If, however, the Act continues to be implemented the way it currently is — as a draconian legislation to silence critics — one may begin to write an obituary for democracy as this country has known it.  
The authors are Abraham C. Mathews and Moyna; Illustration by Dinesh S. Banduni

(This story was published in BW | Businessworld Issue Dated 23-02-2015)

Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house. Unless otherwise noted, the author is writing in his/her personal capacity. They are not intended and should not be thought to represent official ideas, attitudes, or policies of any agency or institution.

Abraham C Mathews

The author is an Advocate, practicing in Delhi, and a Chartered Accountant

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