A government that chooses its critics

On November 16, 2019, the Central Bureau of Investigation raided Amnesty International’s offices in Bengaluru and Delhi based on allegations that the NGO had violated provisions of the Foreign Contribution (Regulation) Act, 2010, and of the Indian Penal Code. Amnesty has been vocal about human rights abuses, notably in Jammu and Kashmir and Assam.

The raid is not an isolated incident but part of a pattern of harassment of NGOs in India. In early 2019, Greenpeace had to shut two offices in India and reduce its staff. Since 2015, Greenpeace India has been barred from receiving foreign donations. In July 2019, there were raids in the offices of the Lawyers Collective. In 2019 alone, more than 1,800 NGOs lost their licence to receive foreign funding.

This is worrying given that international funding is crucial for NGOs to function. The contribution of NGOs to human rights and public awareness is significant in India. The recognition of the rights of homosexuals and transgender people, for instance, would have been unimaginable without the sustained effort of civil society organisations. Likewise, developments in the public provision of health and education are unlikely to come about without pressure by NGOs.

Most NGOs are neither politically powerful nor have great financial capacity. For example, small environmental or tribal rights groups protesting against environmental violations by multinational companies cannot fight back against companies that use their resources — profits from elsewhere — for public relations, campaigning, and advertisement to resist the protests. Thus there is a power imbalance in this struggle, exacerbated by financial restraints on organisations.

What is ‘public interest’?

The FCRA regulates the receipt of funding from sources outside of India to NGOs working in India. It prohibits receipt of foreign contribution “for any activities detrimental to the national interest”. The Act specifies that NGOs require the government’s permission to receive funding from abroad. The government can refuse permission if it believes that the donation to the NGO will adversely affect “public interest” or the “economic interest of the state”. This condition is manifestly overbroad. There is no clear guidance on what constitutes “public interest”. Consequently, a government could construe any disagreement with, or criticism of, any of its policies as being against public interest.

The current government has already done this. For example, in 2014, several groups including Greenpeace were accused by the Intelligence Bureau of stalling India’s economic development. In the government’s narrow view, public interest is interpreted as being equivalent to its priorities. That is simply not the case. Thus, an environmental or human rights organisation criticising the government can be accused of “acting against public interest”.

Consequences on rights

The restrictions also have serious consequences on both the rights to free speech and freedom of association under Articles 19(1)(a) and 19(1)(c) of the Constitution. The freedom is based on the idea that individuals can form voluntary groups and pursue various interests. It is a form of collective expression and thought. The Supreme Court has held that this right includes the right to continued sustenance of the association, without unreasonable restraint (Damyanti Naranga v. Union of India, 1971).

The foreign funding prohibition also negates the significance of voluntary, non-profit associations in a democracy. Free speech is valuable not because everyone agrees, but because it enables a culture of dissent, deliberation, and debate. The right to free speech is affected in two ways. One, by allowing only some political groups to receive foreign donations and disallowing some others, the government can ensure a biased political debate. It can reduce critical voices by declaring them to be against public interest. Two, this chilling effect on free speech can lead to self-censorship. Speech that is protected by the Constitution can be construed as “against public interest”. Thus, the standard regulates speech in a manner that is incompatible with the Constitution. In Shreya Singhal v. Union of India (2015), the Supreme Court was similarly faced with overbroad classifications in the Information Technology Act. Striking down Section 66A, the Court held that the Act could be used in a manner that has a chilling effect on free speech. This has already happened in the case of the FCRA. NGOs need to tread carefully when they criticise the regime, knowing that too much criticism could cost their survival.

Democracy requires critics and civil society. This is why invoking the FCRA to curb the work of NGOs is deeply troubling. In a democracy, criticism should be welcomed, not repressed. No government should ever be able to choose its own critics.

Thulasi K. Raj is a practising lawyer and was an Indian Equality Law Fellow at Melbourne Law School; Bastian Steuwer is a political philosopher at the London School of Economics

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Printable version | Nov 30, 2021 6:46:46 PM |

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