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UN report says India's foreign funding law being "arbitrarily" used against NGOs to silence criticism, is capricious

By Our Representative
In a strongly-worded critique of the efforts by the Government of India (GoI) to use Foreign Contributions Regulation Act (FCRA) against non-government organizations (NGOs), a United Nations (UN) report has said terms such as ‘political objectives,’ ‘political activities,’ or ‘political interests’ are being applied against NGOs “in an arbitrary and capricious manner”.
In a 17-page report submitted to the GoI, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, has said that fault, in fact, lies with the “imprecise language” of the FCRA, enacted by the former UPA government in 2010.
Especially taking exception to the manner in which the Act defines ‘political nature’ in an “overly broad” manner, the report says, it “encompassing almost all potential activities of an organization”, which are allegedly “likely to affect prejudicially... the economic interest of the State” or “public interest”.
The report believes, “Restricting access to foreign funding for associations based on notions such as 'political nature', 'economic interest of the State' or 'public interest' ... create an unacceptable risk that the law could be used to silence any association involved in advocating political, economic, social, environmental or cultural priorities which differ from those espoused by the government of the day.”
Greenpeace India, a victim of FCRA in 2015
Pointing to now the law has been misused more recently, with “nearly 14,000 NGOs have seen their licenses to receive foreign funding revoked” by the GoI, the Special Rapporteur argues that the ability of civil society organizations to access resources, including foreign funding, is a “fundamental part of the right to freedom of association under international law, standards, and principles – and more particularly part of the right to form an association.”
Kiai asserts that India’s limitations on access to foreign funding do not meet “the stringent test for allowable restrictions” under international law.
This test, says the report, requires that restrictions be (1) prescribed by law; (2) imposed solely to protect national security or public safety, public order, public health or morals, or the rights and freedoms of others; and (3) “necessary in a democratic society.” It insists, “The FCRA fails on all three prongs of the test.”
Coming to the FCRA’s stated purpose of prohibiting “acceptance and utilization of foreign contribution or foreign hospitality for any activities detrimental to the national interest”, the Special Rapporteur underlines, “National interests and economic interests are not synonymous with national security or public order.”
“The Human Rights Committee has found that when a State invokes national security and protection of public order as a reason to restrict the right to freedom of association, the State party must prove the precise nature of the threat,” Kiai writes.
“Restrictions on the right to freedom of association based on national security concerns must refer to the specific risks posed by the association; it is not enough for the State to generally refer to the security situation in the specific area”, Kiai adds.
The Special Rapporteur further notes that a total ban on access to foreign funding for organizations found to be of a “political nature” or acting against economic or national interest is likely to “disproportionately impact certain groups.”
“Among these groups are those engaged in critical human rights work, those which address issues of government accountability and good governance, and those which represent vulnerable and minority populations or views”, the report underlines.
“Access to resources, including foreign funding, is a fundamental part of the right to freedom of association under international law, standards, and principles, and more particularly part of forming an association”, Kiai states.
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