The Central government has acted against a number of NGOs in India in the past two years for allegedly violating the Foreign Contribution (Regulation) Act. In a recent analysis report, the UN Special Rapporteur on rights to freedom of peaceful assembly and of association, Maina Kiai, said the FCRA regulations in India do not meet the International Covenant on Civil and Political Rights’ (ICCPR) proportionality requirement. In an e-mail interview with T.K. Rohit , Mr. Kiai said “there are currently serious obstacles to the right to freedom of association that violate international law.”Excerpts from the interview:
Do you think there is enough evidence to be concerned about India’s FCRA regulations?
Clearly there is evidence of a problem, and reason to be concerned. I have received a number of reports over the years from activists and organisations who feel that they have been targeted by the government. I have an equally clear sense that they feel their space to operate freely is closing.
Is the Indian government stifling NGOs?
I believe there are currently serious obstacles to the right to freedom of association that violate international law, and that these obstacles have increased in recent years. I have received a number of complaints about this issue from Indian organisations, and the volume has grown since I began working as Special Rapporteur. I also know that there is quite a lot of activity and debate around this issue in India, with some sources reporting tens of thousands of NGOs losing their licences to receive foreign funding.
At the same time, civil society in India remains vibrant — at least for the moment. India is very important in the UN context. It is the world’s biggest democracy and has a massive and vibrant civil society. India is seen as a leader for other countries, but unfortunately in this area it is leading in the wrong direction.
Your report points out that the FCRA appears to contravene India’s obligations under the ICCPR. What measures can India take in this regard?
There are three possibilities. The first, which can be done tomorrow, is to be more permissive in interpretation of the law. The second, which would take legislative action, is to repeal the law. The third is for a domestic court to find the law unconstitutional or in violation of international law.
Even a democracy and its legislative institutions have to respect the international obligations of the state.
Can’t a country mandate that organisations raise funds internally?
Under international law, governments clearly can’t put a blanket restriction on organisations receiving any foreign funding. Such restrictions are inherently disproportionate. I would also add that the Government of India is a massive player when it comes to overseas development aid — both as a donor and a recipient. Why should it be okay for the government to receive and donate funds, but not for independent organisations?
What’s the way forward?
At the very least, I would like to have a dialogue with the Government of India. They have yet to officially respond to the analysis I submitted, but I would like to hear their views. This dialogue can be formal, informal, or something in between.
The best-case scenario would be for India to invite me to conduct an official country visit, where I can meet with government officials and civil society in person. I requested such a visit in 2014, but the government is yet to respond. I would also be very open to conducting an unofficial visit to the country. In fact, I’ve tried to do this at least twice, but was never able to secure a visa. I would take it as a positive sign of engagement if the Government of India could step in to help facilitate the visa process, so that I can come to the country at least in an unofficial capacity.
And ultimately, of course, I would like to see the Government of India — whether via the executive, legislative or judicial branch — act on my analysis and make the appropriate adjustments to the FCRA.
Why should it be okay for the government to receive and donate funds, but not for independent organisations?
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