FCRA amendment will enable foreign-based radical Hindu bodies to send funds to India to support hate campaigns
Excerpts from "Constitutional and Legal Challenges Faced by Religious Minorities in India", submitted to the Donald Trump administration, by the US Commission on International Religious Freedom (USCIRF), an independent, bipartisan US federal government commission created by the 1998 International Religious Freedom Act (IRFA) that claims to monitor the universal right to freedom of religion or belief abroad:
The Foreign Contribution Regulation Act (FCRA), passed in 1976 and amended in 2010, has consistently been used against civil society organizations, charities, and other nongovernmental organizations (NGOs).
Under this legislation, missionaries and foreign religious organizations must comply with the FCRA, which limits overseas assistance to certain NGOs, including ones with religious affiliation. The FCRA controls foreign funding for NGOs, but the government has used it to block funds to hamper the activities of NGOs that question or condemn the government or its policies.
Recently, the Indian government has been accused of targeting human rights activist Teesta Setalvad and her husband, Javed Anand, for allegedly violating the FCRA and receiving funds unlawfully. Mrs. Setalvad is renowned for her supportive endeavors for victims of the 2002 anti-Muslim Gujarat riots. She has been campaigning to seek criminal charges against Indian officials, including Prime Minister Narendra Modi, for their alleged involvement in the anti-Muslim riots. The Ford Foundation—a New York-based private foundation with the mission of advancing human welfare—which supported Mrs. Setalvad’s work, was also put on the FCRA’s watch list.
The U.S. Department of State has raised concerns over the constraints that were put on the Ford Foundation. In May 2015, the U.S. ambassador to India Richard Verma expressed concerns over challenges faced by civil society organizations in India and the “potentially chilling effects” of the regulatory measures. In June 2016, the Indian government cancelled the registration of Mrs. Setalvad’s organization, Sabrang Trust, under the FCRA. Earlier, in 2015, the Indian Home Ministry cancelled and suspended the licenses of approximately 8,000 NGOs under the FCRA.
Section 9 of the amended FCRA (2010) enables the government of India to disallow acceptance of foreign donations where the government “is satisfied that the acceptance of foreign contribution . . . is likely to affect prejudicially . . . public interest.” Section 12(4) of the FCRA (2010) outlines the conditions for registration under the act, which includes that the acceptance of foreign donations is not likely to affect prejudicially, inter alia, the scientific or economic interest of the state or the public interest.
The notions used in the act are very ambiguous and open to abuse, as the act has not offered any definitions of the notions “security, strategic, scientific or economic interest of the State,” or of “the public interest.” In June 2015, India also put a leading Christian charity, Caritas International, on its watch list under FCRA. The charity, which is considered to be a social arm of the Vatican, was scrutinized for alleged “anti-India activities.”
In April 2016, the United Nations Human Rights Office of the High Commissioner issued a detailed info note on FCRA. United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association Maina Kiai analyzed the FCRA and clearly stated:
“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. Therefore, any restriction on access to foreign funding must meet the stringent test for allowable restrictions for the right to association developed by the international human rights bodies.
Recently, the Indian government has been accused of targeting human rights activist Teesta Setalvad and her husband, Javed Anand, for allegedly violating the FCRA and receiving funds unlawfully. Mrs. Setalvad is renowned for her supportive endeavors for victims of the 2002 anti-Muslim Gujarat riots. She has been campaigning to seek criminal charges against Indian officials, including Prime Minister Narendra Modi, for their alleged involvement in the anti-Muslim riots. The Ford Foundation—a New York-based private foundation with the mission of advancing human welfare—which supported Mrs. Setalvad’s work, was also put on the FCRA’s watch list.
The U.S. Department of State has raised concerns over the constraints that were put on the Ford Foundation. In May 2015, the U.S. ambassador to India Richard Verma expressed concerns over challenges faced by civil society organizations in India and the “potentially chilling effects” of the regulatory measures. In June 2016, the Indian government cancelled the registration of Mrs. Setalvad’s organization, Sabrang Trust, under the FCRA. Earlier, in 2015, the Indian Home Ministry cancelled and suspended the licenses of approximately 8,000 NGOs under the FCRA.
Section 9 of the amended FCRA (2010) enables the government of India to disallow acceptance of foreign donations where the government “is satisfied that the acceptance of foreign contribution . . . is likely to affect prejudicially . . . public interest.” Section 12(4) of the FCRA (2010) outlines the conditions for registration under the act, which includes that the acceptance of foreign donations is not likely to affect prejudicially, inter alia, the scientific or economic interest of the state or the public interest.
The notions used in the act are very ambiguous and open to abuse, as the act has not offered any definitions of the notions “security, strategic, scientific or economic interest of the State,” or of “the public interest.” In June 2015, India also put a leading Christian charity, Caritas International, on its watch list under FCRA. The charity, which is considered to be a social arm of the Vatican, was scrutinized for alleged “anti-India activities.”
In April 2016, the United Nations Human Rights Office of the High Commissioner issued a detailed info note on FCRA. United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association Maina Kiai analyzed the FCRA and clearly stated:
“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. Therefore, any restriction on access to foreign funding must meet the stringent test for allowable restrictions for the right to association developed by the international human rights bodies.
"Given this narrow test, restricting access to foreign funding for associations based on notions such as ‘political nature,’ ‘economic interest of the State’ or ‘public interest’ violates the right because these terms or definitions are overly broad, do not conform to a prescribed aim, and are not a proportionate responses to the purported goal of the restriction.
"Such stipulations 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. These restrictions as defined by the Foreign Contribution Regulation Act (2010) and Rules (2011), do not meet the obligations of the Union of India under international law, standards and principles.”
Ironically, in March 2016 the BJP government hastily and silently introduced an amendment to the FCRA during the budget session to legalize funding by foreign entities to political parties. The amendment came into effect retroactively from 2010, when the FCRA was introduced.
The amendment was in response to a 2014 Delhi high court decision, in which the court determined that both the BJP and Indian National Congress were guilty of violating the FCRA because they received millions of dollars from foreign entities for their 2014 election campaigns. The court ordered the authorities and the election commission to act against both the political parties.
The amendment to the FCRA clearly contradicts the basic purpose of the original legislation, which was intended to forbid political parties, politicians, and election candidates from accepting foreign donations to prevent foreign interests from affecting the Indian electoral process. The amendment enables foreign Hindu organizations to send money to India-based radical Hindu organizations.
Allegedly, radical groups have been seeking funds for the controversial Ghar Wapsi campaign. The South Asia Citizens Web has released a report titled “Hindu Nationalism in the United States.” The report discusses the policies and actions of Hindu radical groups in the United States, and covers tax records, newspaper articles, and other sources on the NGOs in the United States affiliated with the Sangh Parivar, a family of Hindu nationalist groups that includes the Rashtriya Swayamsevak Sangh (RSS), Vishwa Hindu Parishad (VHP), Bajrang Dal, and BJP.
According to the report, “India-based Sangh affiliates receive social and financial support from its U.S.-based wings, the latter of which exist largely as tax-exempt non-profit organizations in the United States.” The report has identified U.S.-based organizations—among them Hindu Swayamsevak Sangh (HSS), Vishwa Hindu Parishad of America (VHPA), Sewa International USA, Ekal Vidyalaya Foundation-USA, and the Overseas Friends of the Bharatiya Janata Party-USA (OFBJP)—as affiliates of the Sangh Privar.
The amendment to the FCRA clearly contradicts the basic purpose of the original legislation, which was intended to forbid political parties, politicians, and election candidates from accepting foreign donations to prevent foreign interests from affecting the Indian electoral process. The amendment enables foreign Hindu organizations to send money to India-based radical Hindu organizations.
Allegedly, radical groups have been seeking funds for the controversial Ghar Wapsi campaign. The South Asia Citizens Web has released a report titled “Hindu Nationalism in the United States.” The report discusses the policies and actions of Hindu radical groups in the United States, and covers tax records, newspaper articles, and other sources on the NGOs in the United States affiliated with the Sangh Parivar, a family of Hindu nationalist groups that includes the Rashtriya Swayamsevak Sangh (RSS), Vishwa Hindu Parishad (VHP), Bajrang Dal, and BJP.
According to the report, “India-based Sangh affiliates receive social and financial support from its U.S.-based wings, the latter of which exist largely as tax-exempt non-profit organizations in the United States.” The report has identified U.S.-based organizations—among them Hindu Swayamsevak Sangh (HSS), Vishwa Hindu Parishad of America (VHPA), Sewa International USA, Ekal Vidyalaya Foundation-USA, and the Overseas Friends of the Bharatiya Janata Party-USA (OFBJP)—as affiliates of the Sangh Privar.
While the Indian government continues to use the FCRA to limit foreign funding for some NGOs, Hindutva supporter organizations have never come under the scrutiny of the FCRA. With the new amendment to the FCRA, these foreign-based radical Hindu organizations will be able to send funds to India, without restriction, to support hate campaigns.
Under the new definition of the FCRA, so long as the foreign company’s ownership of an Indian entity is within the foreign investment limits prescribed by the government for that sector, the company will be treated as “Indian” for the purposes of the FCRA.
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Download full report HERE
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