The commission has asked whether the ministry is adhering to conditions of FCRA licence rejection set out by the UN special rapporteur on freedom of association and assembly.
The National Human Rights Commission (NHRC) has questioned the union home ministry’s decision to not renew the Foreign Contribution Regulation Act (FCRA) licence of the Centre for Promotion of Social Concerns (CPSC). The NHRC issued a notice asking the ministry to explain the reasons behind denying the CPSC and other human rights organisations of their FCRA licences. This decision of the ministry has also come under criticism from international human rights forums and organisations.
The CPSC is best known for its programme unit ‘People’s Watch’ that carries out human rights monitoring, education and rehabilitation activities all over India.
The NHRC said it is issuing this notice to the ministry on a complaint alleging a “draconian approach” from the government towards the renewal of FCRA licences to NGOs working for the protection of human rights.
Castigating the Centre for its approach, the NHRC said: “Prima-facie it appears FCRA license non-renewal is neither legal nor objective and thereby impinging on the rights of the human rights defenders both in access to funding including foreign funding.”
The commission has noted that the 7th Human Rights Defender Forum in Colombo, Sri Lanka had urged it to intervene in the case. During its proceedings in the case, NHRC said, “such systematic attack on rights of the Human Rights Defenders and on fundamental rights of the association and assembly as enshrined in the Article 19 of the Constitution of India has also been brought to notice of the Commission.”
It also recalled how the UN special rapporteur on freedom of association and assembly had in his local analysis of FCRA 2010 submitted a report to the government of India earlier this year arguing that “FCRA is not in conformity with international law, principles and standards as access to resources including the foreign funding is a fundamental part of the right to freedom of association under the international laws, standards and principles.”
Moreover, the NHRC said, “limitations placed on access to foreign funding will have to pass the litmus tests” of their being “prescribed by law; imposed solely to protect national security, public safety, public order, public health or morals, or the rights and freedoms of others; and (being) necessary in a democratic society such as rights and freedoms of others.”
Taking suo moto cognisance of the present case, NHRC directed the secretary (home) to supply it with relevant information on the case within six weeks.
It has asked the Centre to provide it with the “number of NGOs of Human Rights Defenders who have not been allowed renewal of the license and the amount received by them from foreign funding during last three years and the reason for non-renewal.”
Further, in the case of the CPSC, it has demanded to know “how the litmus test laid down by the UN Special Rapporteur is applied in the adjudication by the Central Government”. And finally, it has asked “how the generic aspect of access to foreign funding and continuance of the same is not the right to form association and is not against international law, standards and principles.”
Stressing on the legality of its powers to summon information, the NHRC said it was directing the government under section 12(d) of the Protection of Human Rights Act, 1993, “to arrive at whether the review of the law can be recommended”.
In addition to the forum, several organisations have also criticised the denial of licence to CPSC. On November 11, the Observatory for the Protection of Human Rights Defenders, a partnership of the World Organisation Against Torture and International Federation for Human Rights had sought urgent intervention on the matter.
It had stated that the only reason provided by the MHA for not renewing CPSC’s licence was: “on the basis of field agency report, the competent authority has decided to refuse your application for renewal”.
On November 7, the Delhi high court heard CPSC’s plea against the decision, also asking for the reason behind it. Here, “Central Government standing counsel Anil Soni told the court that the Government was exempted from providing reasons for refusing to renew FCRA registrations, adding that the decision was based on `inputs of intelligence agencies’.” However, the judge insisted that the ministry provide the court with the reasons and the matter is now listed for November 18. The CPSC had also filed a petition with the NHRC on November 1.
The observatory also noted how the FCRA licence of the CPSC had earlier been suspended on three occasions in 2012 and 2013, for a total period of 24 months, until the Delhi high court ruled in its favour in March 2014.
The observatory said it was also concerned because the situation faced by the CPSC is taking place in the “framework of a wider repression on NGOs in India, including through the use of the FCRA.” It said only earlier this month the media had reported the decision of the government not to renew the registration of 25 NGOs under the FCRA for allegedly indulging in “activities not conducive to national interest”.
It also brought up how the Ministry of Home Affairs had earlier announced that it had cancelled the FCRA licences of more than 11,000 NGOs for failing to apply for renewal by the June 30 deadline. With NGOs eligible for foreign funding required to renew their registration under the FCRA every five years, the observatory said the impact of this law on Indian NGOs that receive external funding is very harmful.
It recalled how in a statement released on June 16, 2016, UN special rapporteurs on the situation of human rights defenders, Michel Forst, on freedom of opinion and expression, David Kaye, and on the rights to freedom of peaceful assembly and of association, Maina Kiai, had called upon the government to repeal the FCRA and said that they “are alarmed that FCRA provisions are being used more and more to silence organisations advocating civil, political, economic, social, environmental and cultural priorities, which may differ from those backed by the Government”.
According to the UN experts’ statement, FCRA is being “increasingly used to obstruct civil society’s access to foreign funding, and fails to comply with international human rights norms and standards”. They encouraged the authorities “to ensure a safe and enabling environment for human rights defenders and civil society, which play a critical role in holding the Government to account and buttressing Indian democracy”.
In April 2016 too, the observatory said, the UN special rapporteur on the rights to freedom of peaceful assembly and of association published a legal analysis of the FCRA and stated that the statute is “not in conformity with international law, principles and standards”. The special rapporteur further mentioned in the report that “[the FCRA] appears to give the government broad discretionary powers that could be applied in an arbitrary and capricious manner”.
Given all of this, the observatory had called upon the Indian authorities to review the FCRA and amend the law and related implementing policies to ensure that they are in conformity with international law and human rights standards.