FCRA and NGOs: What Lies Behind the Government's Crackdown?

RTI activist Venkatesh Nayak speaks to The Wire about whether the government is specifically targeting NGOs that question their developmental paradigm.

Hello and welcome to this Facebook live with RTI and human rights activist Ventakesh Nayak of the Commonwealth Human Rights Initiative. We’re here to talk about FCRA (Foreign Contribution Regulation Act) and the government’s latest clampdown on foreign funding. Welcome Mr Nayak. So let’s dive right into it. So recently the government cut the foreign funding for the licence for a specific six or seven organisations that were critical of the Modi government – and to back that, now the Ministry of Home Affairs has cancelled the licence for 20,000 NGOs in India. What do you think lies behind all of this?

Well, unfortunately the government does not always disclose its reasons publicly when they take any of this kind of action. So a lot of discussion that happens is in the domain of speculation, which is extremely unfortunate. But the general perception is, and within the NGO sector there is a very strong perception, that of late the steps being taken by the government of India – in either cancelling the foreign funding licence of NGOs or not renewing the licences of NGOs whose original licences have expired because the new law permits for the licence to be given only once in five years. Now, there are several cases where, I have heard of at least two or three where, some of the NGOs, the very prominent ones working on issues of human rights, working on issues of accountability, governance reforms and all of that – have been told that in the national interest, in the public interest and based on field agency reports, their applications are not being renewed or their existing licences are being cancelled. Now what exactly do these reports contain? It is not in the public domain. So therefore, there is a dearth of information about the reasons behind the actions of the government in invalidating the licences of several NGOs, refusing to renew the licence of several thousand NGOs – which actually are working on the ground level on a range of human rights issues. And that is extremely worrisome.

But a lot of civil society activists have said that this is the government’s way to sort of clampdown on dissent. If they are critical of the government in any way or through their initiatives, this their way of clamping down on dissent; would you like to elaborate on that?

Yes, of course. Last year, I had done an RTI application with the foreigners’ division which actually controls the FCRA and the board procedure; and asked them, since the coming in of the new law in 2011, it was passed in 2010 and operationalised in 2011, with the notifications of rules under the FCRA law. I had asked, in how many instances had they refused to give licence or cancelled licences of organisations by labelling them as organisations of a political nature – there were none. This was last year. But now this year, we are coming across several instances where the government seems to be saying that it is not in the public interest to renew the licences of these NGOs. So obviously, the surmise or the conjecture that one could draw from this or the inference one could draw from these actions is now increasingly that the government is targeting NGOs for speaking out against its policies, for speaking out against the current paradigm of economic development – which does not take into account the human rights protections that are guaranteed to the affected people by the constitution and by various laws.

So questioning the methodology of ensuring quick development is now becoming dangerous for a lot of NGOs that are foreign funded. That is extremely unfortunate because when the constitution guarantees the right to freedom of speech and expression, implicit in that fundamental right is the right to express one’s dissent. The right to express one’s disagreement with the government’s policies. Otherwise, it would become a completely autocratic, despotic dispensation. The whole idea of democracy is the accommodation of a variety of views on an issue. And foreign funding to a certain extent, I wouldn’t say to a large extent, to a certain extent does help a lot of NGOs which are not able to raise local sources of funding. To mobilise themselves, question the way the government works and also do the research that is necessary to be able to show some of the problem areas in the government’s developmental policies. All of that is facilitated through funding. It’s not available locally, so there are donors abroad who support that kind of work. And that is something not unique to India, it is a common trend across the globe – in many many developing countries. Governments very often are in a hurry to ensure economic development at that level, perhaps the logic is certainly defensible – but when it affects people at the ground level, then the other side of development with the dangers, the displacement, the uprooting of people’s lives and livelihoods need to be taken into account – the effect on the environment it has like, like mining or other kind of extractive operations. Now for NGOs to be able to expose all of that, certain source of funding is required. Locally, money is not available for doing that kind of work. Philanthropic organisations would be happy to give you happy to give you money for running schools and hospitals. But they will not give you money for doing this kind of research, talking to people, sharing those findings and mobilising the opinion to say that hey, can we take a second look? Can we have an alternative way of approaching development? And that is where I think the curbs of foreign funding are really affecting what I would say is legitimate civil society action.

To play the devil’s advocate here, do you think the silver lining here would be the Indian organisations, Indian NGOs, they would be forced to tap into the Indian market of philanthropy, because now they cannot get funds from abroad? They have to explore the Indian avenues.

Explorations are definitely possible where there is potential. I have been working in the NGO sector for 17 years now. I know for a fact that if you want to engage in service provision, like for example running a school, running a mid-day meal scheme or let’s say developing self-help groups amongst women in villages. There is money available. But, to be able to do research on let’s say the environmental impact of a large dam, the environmental impact of a thermal power project. That requires money, because a lot of research goes into it, experts have to be hired, there is simply no money for it. So this business of Indian NGOs now making the effort to explore whether local funding is available, would be a reasonable thing to expect only if there are potential sources of funding. There are hardly any philanthropic organisations in the country which support this kind of work. That is extremely worrisome because in many other countries, a lot of money from very legitimate sources, which are all accounted for under the tax laws of the country, goes into supporting this kind of work in various developing countries; not only in the US, not only in the United Kingdom or France, there are NGOs which do this kind of work even in those countries. But then donors based in those countries, who use money given to them by legitimate tax payers, use that money to support the work of NGOs elsewhere. This is increasingly a phenomenon that has developed since the globalisation phase that we are seeing post-1990s onwards. Civil society has, the sector has expanded considerably, and foreign funding for this kind of work has also expanded considerably. The reason why foreign funding supports this kind of work in India, is because as I said earlier, local funding is simply not available for this kind of work in any large measure.

Like we said before, yesterday 20,000 organisations lost their FCRA licence. How do you think this will impact the NGO sector, will the grassroots programmes be the first ones to go and what about the people who are employed in this sector?

You see when the print and electronic media report on these kinds of issues, there is a certain amount of sensationalism that goes into it – pardon me for saying it. When you mention figures in the thousands, it certainly looks like a big story. But you need to really look at what was the reason behind the refusal to renew the licence of these NGOs. My own personal experience shows that there are lots of small organisations that are based in different parts of the country that do not entirely depend upon foreign funding for their entire period of existence. It might be for a specific project that they’ve received foreign funding and once the project is completed they probably do not need more foreign funding for that purpose. As a result of which they may not have applied for any renewal of their licences. So to club those kinds of cases together with those other cases where the government is actively refusing to renew the licences of NGOs, for example Greenpeace or the organisations headed by Teesta Setalvad or Lawyers Collective for that matter, where there is a clear order from the government saying, “We will either cancel your FCRA licence or we are not going to renew based on your application.” So these categories of NGOs have to be separated.

There are lots of NGOs which do not really use foreign funding year on year, as a result of which they may not have applied, so that also gets included in the counting of several thousands. And at the same time, there might be NGOs that have been established for a specific purpose and their purpose is over and they are no longer functional. Therefore, they have not applied for it. So those numbers also get counted. As a result of which, it looks like that the government is doing something really big by cutting the NGO sector and reducing the total number of NGOs that are receiving foreign funding by refusing to renew licences, that is just an image that has been drawn up. The reality lies down below. One needs to look into every single case where an NGO has either applied for licence or not applied for licence and then the figures need to be separated on that basis. There are also instances in the same category; there is another category of NGOs that have not completed the procedure for renewal that is required under the act and the rules. As a result of which they have been given extra time to fill up those deficiencies and come up, so those also get included. Obviously in their case there also the licences have not been renewed. So this business of 20,000 NGOs or whatever is being reported or printed in electronic media, they need to probed more deeply in order to find out in each case, what are the reasons for not renewing them. Then you will see that perhaps the NGO sector, the way it’s been turned into a villain is not really, in our case in point.

The government claims that a lot people, a lot of NGOs, when they take this foreign funding, they misuse these funds or they are responsible for creating disturbance for infrastructure projects; what are your thoughts on that?

Well that is increasingly becoming a worrisome trend as far as the development debate in India is concerned. Unlike the previous FCRA law which was passed in 1976, it is actually an emergency era law. It was brought in in 1976 primarily for the purpose of curbing the political parties reach to foreign funding. The primary purpose of the law was to prevent political parties and media houses from securing foreign funding for any of their activities. Now, the 2010 law extends that to the NGO sector, because in 1976, if you remember that the NGO sector was not as expansive it is today. There were very few NGOs that you could target under the old law. But now under the new law there are thousands of NGOs around the country; so they are being targeted. A lot of NGOs, like I said earlier, are working in the field, looking at the manner in which developmental projects, infrastructure projects, road projects, thermal power projects or let us hydel power projects, are affecting people’s lives. 

Let me also tell you what is problematic with the developmental paradigm that is being forwarded in India. Your viewers may not agree with it, but this is a very strong opinion, that not just intellectuals of this country are voicing, but people whose lives are reality affected by developmental projects are actually saying. And that happens case after case after case; which is today in any major city like Delhi or Bangalore or Mumbai or Calcutta, you will not have the government coming forward to say, ” we will clear up this area and set up a thermal power project” – why? Because the implication of setting up such a project in the middle of an urban centre is much more. In terms of land, in terms of displacement and in terms of the opposition that could come from the highly educated and well organised set of people who live in these cities. It is easiest, it cheapest and it is much more expeditious for these developmental projects to be implemented in areas where people are not so highly educated, where they are eking a hand to mouth existence, a lot of them are marginal farmers, or a lot of them are simply non-landowning agricultural labourers – and they are not very well mobilised. It’s much easier to take away their lands. For example, lands that are under the use or control of tribal communities. Very often they don’t understand the developmental paradigm that is happening, that is being designed for the whole country. No effort is being made to explain to them, what would be the advantages of having these kinds of developmental projects there, how it will directly affect there lives positively and negatively.

 Instead efforts are made to just displace them so that we can get out electricity, we can get our resources for leading the kind of lifestyles that we are used to, in the cities. As a result of which, these NGOs that feel that this is completely violating the fundamental rights of those people, number one; number two, it is completely violative of the directive principles of state policy. Where, in article 39 it says very clearly,’the government has a duty to ensure that the sources of production and wealth that is created, does not lie in the hands of just the few’ – it doesn’t get concentrated there. It needs to be shared equitably. That’s why the preamble of the constitution also says that we are not just a sovereign democratic republic, we are also a socialist republic. The word may not really make much sense in today’s post-liberalised world and globalising context of India. But, it’s still written into the constitution, it can’t be ignored. So, what the NGOs are doing is simply holding up a mirror to the government and saying, hey there is a developmental policy that is written into the constitution. It says that your developmental paradigm has to ensure equitable growth for everybody. But, what you’re doing here, is helping one set of people, while having a completely negative and adverse impact on several other sets of people. If you are to take any large project which requires large swathes of land to be acquired, under the Indian law, until recently, compensation to be given only to the landowners. What happens to people who have other kinds rights on land? Those who are tenants, those who are farmers, those who are agricultural labourers, what happens to the service providers and the artisans who are all intimately integrated into the rural economy of that area; who are not landowners and therefore are not entitled to any compensation. What happens to their livelihoods? Who is going to talk about them? 

The government, going by this well-known principle in law which is called parens patriae, where the state becomes like a parent of those people of those people who can’t defend themselves and their rights – and the state is not performing that obligation. So who is going to do it? It has to be the brothers and sisters of those very people who will speak for them – and say that look demand your rights, ask for proper rehabilitation, ask for resettlement, ask for proper compensation. So when this kind of activity is being done and this is supported by foreign funding, the government says that no, you are ‘anti-national’ or you are ‘anti-development’. This business of portraying NGOs which get people to voice their demands, voice their concerns and demand a fulfilment of their constitutionally given rights. When they are villainised in the name of foreign funding, that becomes problematic. You cannot have a road-roller, steamrolling development throughout. You’ve got to take everybody’s concerns into consideration, for a single reason that our democracy is not about majoritarian rule; our democracy is about governing with a consent of everybody who is affected by the actions of government. 

That unfortunately is not something which is sinking into this whole policy-making process as far as development is concerned. When NGOs raise these issues, they become the targets of these kinds of actions and that is usually problematic. 

You mentioned that the Act initially was meant to keep a check on the funding for media houses and political funding. But the new amendment makes it easier for political parties to get funds from foreign firms, do you think that undermines the FCRA?

This is completely difficult to digest. There was a case that was taken to the Delhi high court by the Association for Democratic Reforms, pointing out that despite the bar on foreign funding which is very explicitly written into the FCRA law, two major national level political parties, one in the opposition and one in government, received funding from those companies which are subsidiaries of these multinational corporations that operate abroad. So technically there was a violation of the foreign contribution regulation law. So what happened? This year when the budget was passed, in the finance bill, one clause was introduced to amend the FCRA to permit these kinds of bodies to get funding from the subsidiaries of foreign companies. Now everything is fine, as far as political parties are concerned. They can get funding from the Indian subsidiaries of foreign companies; earlier that was not allowed. 

But that was not all. That clause was made applicable with retrospective effect, to take away the effect of the Delhi high court judgment. That is usually problematic because, when on principle it is being shown that the actions of these two political parties was unlawful, illegitimate and undesirable, you get parliament to pass a law without any opposition to it; saying that we will change the law with effect from the date of the judgement. That is problematic and that amendment does affect other NGOs also in addition to political parties, NGOs can also get funding from the Indian subsidiary companies, but that’s not the point. The point is that, when it comes to application of the law, the constitution is very clear – article 14 says, equal treatment for everybody before the law. If that is equal treatment for everybody before the law, these two political parties which have violated the FCRA should have borne the consequences. Instead, the law itself has changed with retrospective effect. So when it suits them they will change the FCRA law, when it suits them they are going to use it against the dissenting NGOs; and it is not just this present government, let me make it very clear to your viewers. The new FCRA law was brought in under the UPA regime – and with support from the opposition that was there at that point of time, who are now in the treasury benches. Both sections are in fact quite united to oppose foreign funding for questioning any of these kind or bring any of these kinds of questions in the public domain about how the government is going about doing its development work. 

A lot of civil society activists have also said that government is just targeting only the organisations or majorly targeting the organisations that work for upliftment of Dalits and Muslims. What do you have to say about that?

Yes, of course, that is the other irony as far as the philanthropic sector in India is concerned. In 1947, when India became independent and in 1950 when the constitution was enforced, untouchability and caste discrimination were all by law prohibited. But, to this very date, caste-based discrimination continues, discrimination against Dalits continues, discrimination against Adivasis continues, discrimination against minorities continues and in a variety of ways. There can be no doubt about that. Where is the funding available, locally for the purpose of mobilising these people to demand their rights? It’s simply not available. So it’s only natural that they seek foreign funding. Now increasingly we are seeing that it’s these kinds of NGOs who are being attacked. I’ll give you an example. There’s an organisation called People’s Watch, Tamil Nadu – their FCRA licence has not been renewed. For sometime it had been suspended and also cancelled during the previous government. One of the reasons why they had been treated in that manner was because, they supported the fisher-folk – then men, women and children who are sitting in Koodankulam, where the nuclear power plant has been established with support from Russia. They were demanding transparency in relation to the effect the nuclear power plants would have on the sea right next door, on their livelihoods especially and what actions would be taken by the government in case their is a nuclear fallout of the kind that we saw in Fukushima, because of an earthquake; there is simply no clarity on any of that. 

All that People’s Watch was doing was helping them to stay mobilised and raise their voices, use the law to ask for information. A lot of RTI applications were filed by people from that movement. Even the Central Information Commission ordered the disclosure of those documents, but till date, there has been very little transparency and all that the government has made available in the public domain is what it decides that people should know. The safety analysis report, the site analysis report, all of which are ordinarily put in the public domain in other countries regarding nuclear reactors, are not available in the public domain in our country.

All that these people were doing with some assistance from People’s Watch was to demand accountability and transparency – and that was one of the reasons why their FCRA was taken away. They also are the organisation which raises issues about extra-judicial killings, about custodial torture and those have also become the reasons why they have been attacked and their FCRA was suspended and it was cancelled – and they are almost decimated as an organisation. Now, we’ve been told that in the latest round of applications for renewal, they have been refused; again based on field reports from agencies. What do these reports contain? What are they talking about? Do they even contain anything in terms of the concerns of the local people there? You see, the interesting part, again I bring it back the developmental paradigm in the country, is that you are using that area which is inhabited by the fisher-folk – their livelihoods have been connected with the ecology of that area for several generations, the power that is supplied is going to the cities – whereas their own homes are dark today. If an NGO raises these issues, they are going to be targeted. Now why is that kind of an attitude adopted by the government? Is the question that every tax-paying citizen should be asking. 

Rather than simply look at the electricity that powers our homes, we should be asking why the benefits of that project are not reaching out to the people whose lives have been uprooted by those development projects in those areas? This is the story right from the beginning. I am told, a few years ago I did some research and found out, that there are families who are displaced by one of the earliest of our developmental projects, which is the Bhakra Nangal dam. They have still not been properly rehabilitated, after 60 years. Isn’t this unfair? There are people in the southeastern part of Uttar Pradesh who have been displaced several times in one generation. First because there was the dam that was being constructed, the Rihand dam. Then because there was a Singrauli thermal power project that was constructed; and the third time because they had to create some ash dumps. So the same people are being made to pay the price again and again for somebody else to develop, is that a fair treatment of the citizens of this country? Why should one set of people be responsible for paying the costs of somebody else’s development? NGOs should be raising these questions. If the government is not asking these questions, there has to be a set of people who will raise these questions on behalf of the people. Those are these NGOs.

Finally to wrap it up, as an RTI activist, do you think these NGOs should be subject to RTIs?

You see, under the law, if any NGO receives government funding for a substantial amount, then they are to be treated as public authorities just like any other government department. I am completely in favour of having laws that would make NGOs directly accountable to the people, if they are working for the people – there is no doubt about that. But today you have a situation where you have the Right to Information Act itself is being ignored, it is being weakened through practice by a whole range of public authorities. The Lokpal law makes all foreign funded NGOs that receive foreign contribution about Rs 10 lakh, directly accountable under the Prevention of Corruption Act for the purpose of corruption. So we are already there. There is no question of saying that foreign funded NGOs are not transparent are accountable. 

But what has happened in the process is, that that one law which required every government servant to be transparent about his/her assets and liabilities has been amended during the last session. Today, this requirement of proactive disclosure of information has been done away with, through an amendment. On the one hand, the government is not setting up the Lokpal, the law was passed in 2013, the Lokpal has not been constituted till date. But on the other hand, the government said that the disclosure of assets and liabilities for government servants is now going to be indefinitely extended beyond December 31, they don’t need to submit their returns any time soon because the rules have changed, the law has changed, rules have to be changed, forms have to be notified – but there is no such notification that has come from foreign-funded NGOs. So technically, on December 31 all of us who are part of foreign-funded NGOs have to disclose our assets and liabilities to the government. So there is again a dual-treatment, one given for government servants, one given for employees of NGOs and what exactly is happening – this is a question of confusion as far as policy is concerned. Is it a question of deliberate targeting of NGOs is concerned, there is no clarity on that – and that is why it is absolutely essential that whenever these kinds of decisions are taken, the government has to place all the facts and figures in the public domain beyond talking about how many thousands they have managed to target. The basis on which they refused to renew the licence of every NGO should be put in the public domain. 

It’s as simple as that because they issue an order against the application of every NGO, which has applied for foreign funding. All that you need to do is put a copy of that in the public domain, it’s as easy as that. You don’t really need to recreate any information in order to ensure that there is transparency, you just have to put that, but the government has steadfastly refused to put that in public domain – treating it as a matter between NGO and the government itself, which is not the case. 

One of our viewers, Sudha asks, ” Can Indian philanthropy play more of a role in supporting the NGOs?”

Yes, of course. Given the current scenario and the refusal of the government to treat foreign-funded NGOs in an even-handed manner, which is to be expected from any government; there is a case for the Indian philanthropic sector to look at its priorities and perhaps revisit the priorities and ensure that there is enough money available to provide to NGOs who work on issues of human rights, who work on issues of governance and accountability and also transparency. So the Indian philanthropic organisations need to take that call. In fact, if you see, the irony about charity in India is, based on figures and most recently the figures have become all the more apparent in the drive to demonetise the economy; several lakh rupees in old notes were made to temples, because temples have a way of converting them anyway. We don’t know what would be the quid pro quo to the person who gave the donation, but if the same person had that much money and wanted to make good use of it, they could have certainly given that to NGOs which are talking about the rights of the under-privileged in this country, that has not happened. There is money for religion in charity, I certainly would not want to be a person who would criticise people who would give money out as charity to religious institutions. That is their hard earned money, it is their right. But please also look at the huge inequalities and inequities that exist in our system – and perhaps a part of money if they could donate to NGOs, which speak for the rights of the marginalised and the under-privileged, perhaps the merit that they would expect in return for whatever religious charity would be actually visible at the ground level, if they were to share some of the money with the NGOs who are doing this kind of work. It would certainly lead to efforts being made to improve the lives of these people. That is why the philanthropic sector in India needs to look at how they need to review and re-prioritise their areas where they would be giving out funding.

Thank you so much Mr. Nayak, thank you for joining us today and thank you to our viewers for joining us for this Facebook live.