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Thursday, November 26, 2020

The FCRA Catch-22

The law contains provisions that give unbridled powers to the Home Ministry to disqualify any association. Paradoxically, the fear and vulnerability created by such provisions is what prevents organisations from coming forward to challenge them.

New Delhi | October 20, 2020 4:15:39 pm
Stepping forward to seek a review of any of the offending provisions of the FCRA, given the facts, would be an act of conviction and a leap of faith. (Representational)

Written by Kabir Dixit

The FCRA 2020 amendments come as a blow to Indian civil society. They cut out access to foreign contributions as a source of funding for most organisations and bring to an end an era of collaboration among FCRA registered civil society organisations (CSOs). CSOs are, however, hesitant on two counts about challenging the provisions of the FCRA: First, the concerns about the scope and strategy of a review — whether to challenge the law as a whole or its various problematic provisions separately, who would be a proper petitioner, etc. Then there is the fear. It is felt that any organisation that confronts the Home Ministry will invite retaliation.

The fear, unfortunately, is not unfounded. Take the case of Indian Social Action Forum (“INSAF”), the only organisation so far to challenge any of the provisions of this law. Back in August 2011, it had approached Delhi High Court for a declaration that the procedure for disqualifying any entity as “an organisation of political nature” under the act was vague, arbitrary, and liable to misuse. It took nearly a decade for this case to travel to and be finally decided by the Supreme Court.

INSAF’s experience in this duration is telling. First, its FCRA registration was suspended by the Home Ministry in April 2013 for a cryptic reason (“in public interest”). This suspension was quashed by the Delhi High Court. This judgment upheld the safeguards built into the power of suspension under the Act. For the next the years, the Home Ministry did not appeal this judgment but in 2016, when the organisation’s registration came up for renewal, it was refused without giving any reasons.

In March 2020, INSAF’s constitutionality challenge met with partial success. After a long wait, the Supreme Court read down the infringing rule under the FCRA in a judgment upholding civil liberties and held: “Support to public causes by resorting to legitimate means of dissent like bandh, hartal, etc. cannot deprive an organisation of its legitimate right of receiving foreign contribution. It is clear from the provision itself that bandh, hartal, rasta roko, etc., are treated as common methods of political action. Any organisation which supports the cause of a group of citizens agitating for their rights without a political goal or objective cannot be penalized by being declared as an organisation of a political nature… … only those organisations which have connection with active politics or take part in party politics, that are covered by Rule 3(vi).”

Yet, today, INSAF is stuck in a case against the refusal of its FCRA renewal and faces isolation. Donors, it is said, hesitate to associate with anyone with the reputation of being in the government’s cross-hairs. In other words, while the operation was successful, we can’t be certain if the patient will survive.

There is an undeniable climate of fear. This fear may have deepened in the last six years but this oppressive law was passed in 2010. The targeting of CSOs critical of the government on policies and human rights too began prior to 2014.

It’s a Catch-22. The law is onerous and uncertain; it contains provisions that give unbridled powers to the Home Ministry to disqualify any association at the slightest, vaguest, disproportionately trivial pretext; this is precisely what makes such powers unconstitutional. Paradoxically, the fear and vulnerability created by such provisions is what prevents organisations from coming forward to challenge them.

For instance, an organisation can be denied renewal under the amended Act if any of its directors or office bearers has “any prosecution under any offence pending against him”. Technically, this could include a traffic challan! For contrast, cabinet ministers are not disqualified even for heinous criminal charges pending against them. At best, their cases are fast-tracked. When voices critical of the government are routinely faced with serious criminal cases, this disqualification has a chilling effect. Its consequences are not hard to envision. Funded CSOs will be compelled to ease out individuals inclined to oppose government policies, especially through organised protests; gradually, they might also have to distance themselves from people’s movements opposed to large corporate and state interests on issues like land acquisitions or nuclear power plants. This is the by-now-cliché “shrinking of democratic spaces”.

Reckon for a moment that such blanket provisions are not likely to be stayed even when challenged. They will be available to the Home Ministry to use against any petitioner while the petition seeking review is pending. Which established, resourceful CSO can stake its programmes, projects, and staff, in short, its existence on one case?

Stepping forward to seek a review of any of the offending provisions of the FCRA, given the facts, would be an act of conviction and a leap of faith. Ultimately, the courts must appreciate this predicament and ensure speedy justice to anyone facing retaliatory action.

At the crux are the courts’ powers of judicial review of laws enacted by Parliament, an essential part of the separation of powers and of rule of law – tenets that are part of the basic structure of the Indian Constitution. Involvement of a high degree of risk in invoking that power against an unfair law reduces aggrieved citizens to the proverbial “Council of Mice” deliberating the life-threatening task of belling the cat. This grim, medieval parable about the impossibility of resistance against the outrages of rulers should not play out in a 21st-century democracy.

(The writer is Advocate-on-Record, Supreme Court of India)

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