Foreign funding law 'misused' to target civil society: Amnesty, Human Rights Watch

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Counterview Desk
Two top rights groups with presence in several countries, including India, Human Rights Watch and Amnesty International, have said that the “criminal case” against the Lawyers Collective, a Delhi-based high profile NGO with some of the most well-known Supreme Court advocates as its office bearers, is the latest example of how the foreign funding law is being used by the Indian authorities to “harass outspoken rights groups”. 

In a joint statement, they said, the Government of India “appears to be disregarding court rulings upholding the rights of civil society groups to freedom of expression and association”, adding, at the same time, the government has “failed” to provide substantive replies to questions from the National Human Rights Commission regarding “misuse of the foreign funding law against nongovernmental groups”.

The statement:

On June 18, 2019, the Central Bureau of Investigation (CBI) filed a criminal case against the Lawyers Collective for allegedly violating the Foreign Contribution (Regulation) Act (FCRA). The group provides legal aid, advocates for the rights of marginalized groups, campaigns to end discrimination against LGBTQ people, and seeks enforcement of workplace sexual harassment laws.
“The Indian authorities are evidently targeting the Lawyers Collective because of their work defending human rights activists and advocating for the rights of marginalized groups,” said Aakar Patel, head of Amnesty International India. “The repeated misuse of the foreign funding law restricts groups’ ability to operate in violation of their rights to freedom of expression and association.”
The CBI has accused the Lawyers Collective of criminal conspiracy, criminal breach of trust, and cheating under the Indian Penal Code, false statement made in declaration, and various sections under the FCRA and Prevention of Corruption Act 1988. These allegations are based on a 2016 Home Affairs Ministry inspection report that alleged financial irregularities against the organization and its co-founders, the prominent lawyers Anand Grover and Indira Jaising.
It claimed that the organization used the funds for activities that violated the foreign funding law, notably “lobbying with members of parliament and thereby influencing the political process and parliamentary institutions.”
While governments may limit certain political activities of nongovernmental organizations in exchange for tax benefits, the broad restrictions on groups that obtain foreign funding violates basic free expression and association rights, Human Rights Watch and Amnesty International India said.
The Home Ministry allegation against the Lawyers Collective is inconsistent given that the Indian government, led by the Bharatiya Janata Party (BJP), amended the FCRA first in 2016 and then in 2018 to retroactively legalize foreign funding made to political parties. The foreign funding law had been enacted largely to prohibit political parties and politicians from accepting foreign support to prevent foreign interests from influencing Indian elections.
But in 2014, the Delhi High Court had found that the BJP and the Congress Party had received foreign funding in violation of the foreign funding law. The law was then amended to prevent any retroactive action from being taken against the political parties.
The government first suspended Lawyers Collective’s FCRA license in May 2016 and later cancelled it in November 2016, also freezing bank accounts. The Lawyers Collective has challenged the cancellation and non-renewal of the license in Bombay High Court. While the case is pending, in January 2017, the court ordered the authorities to release its domestic bank accounts.
The allegations and charges against the Lawyers Collective appear to be an attempt to silence the group because of its work representing people in cases against the government, Human Rights Watch and Amnesty International India said. The Lawyers Collective has represented activists facing a range of politically motivated allegations including those that sought prosecutions for the 2002 targeted attacks on Muslims in Gujarat, or others that have defended the rights of tribal groups and Dalits.
Civil society groups, activists, doctors, and patient rights’ advocates have condemned the government’s actions against the Lawyers Collective. The National Human Rights Commissionalso sought a status report from the CBI on its investigation against the group.
Since 2014, several organizations have been targeted under the foreign funding law, including Greenpeace India, Centre for Promotion of Social Concerns, Sabrang Trust, Navsarjan Trust, Act Now for Harmony and Democracy, NGO Hazards Centre, and Indian Social Action Forum.
The authorities’ use of the foreign funding law against the Centre for Promotion of Social Concerns, a prominent Indian human rights organization better known for its program unit, People’s Watch, also highlights the law’s use for reprisal.
When the group challenged the government’s decision not to renew its FCRA in the Delhi High Court in 2016, the Home Affairs Ministry told the court that the group used foreign funding to share information with United Nations special rapporteurs and foreign embassies, “portraying India’s human rights record in negative light…to the detriment of India’s image.”
The government characterized this as “undesirable activities detrimental to national interest,” effectively trying to target the group for promoting international human rights standards.
The government appears to be disregarding court rulings upholding the rights of civil society groups to freedom of expression and association, Human Rights Watch and Amnesty International India said. The courts have repeatedly reminded the government that in a democracy, peaceful dissent is protected and may not be muzzled.
The government has also failed to provide substantive replies to questions from the National Human Rights Commission regarding alleged misuse of the foreign funding law against nongovernmental groups, and to explain why these restrictions do not violate international law and standards. For instance, in November 2016, the commission questioned the government’s decision not to renew the FCRA license for Centre for Promotion of Social Concerns.

The government submitted a response in December 2016, but the commission said that its reply “was vague to say the least.” Despite the commission’s repeated calls, the government provided no updated response.
The foreign funding law’s vague provisions and its misuse have also received international condemnation. In April 2016, the UN special rapporteur on freedom of peaceful assembly and association published a legal analysis asserting that the FCRA was not in conformity with international law, principles and standards. 

In June 2016, the UN special rapporteurs on the situation of human rights defenders, on freedom of opinion and expression, and on freedom of peaceful assembly and association, called on the Indian government to repeal the FCRA, which they said was “being used more and more to silence organisations involved in advocating civil, political, economic, social, environmental or cultural priorities, which may differ from those backed by the Government.”
While it is appropriate to regulate and scrutinize the financial affairs of not-for-profit organizations and nongovernmental organizations to address corruption and legitimate national security concerns, the FCRA is too broad and unnecessarily infringes on the activities of organizations that address social issues in India. 

The Indian government should repeal the law, or amend it so that it does not interfere with the rights to freedom of expression and association, and cannot be misused for political reasons to restrict the peaceful activities of nongovernmental organizations, Amnesty International India and Human Rights Watch said.
“The Indian government talks about inclusive development and commitment to basic rights and yet is targeting lawyers and activists who seek to protect the rights of the most vulnerable,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “Democratic governments should not fear criticism, and should certainly not target activists for their ideology or commitment to upholding civil liberties.”