Much has already been said on the most recent amendments to India’s Foreign Contribution Regulation Act (FCRA). Op-ed writers have opined. Editors have pontificated. Civil society leaders have cried themselves hoarse, warning of the threat the amendments pose to both development and democracy.
They all agree that the amendments are ill-conceived, ill-timed and probably ill-intentioned. It’s clear that the new provisions will deter international donors, cut smaller organisations’ access to overseas support, render nonprofit work in research, policy analysis, advocacy and capacity building more difficult and add considerable friction to transactions involving international funds. Few NGOs would survive the 360 days the law now afford enforcement agencies to freeze their finances and operations while they mount a prosecution, even if they are eventually proven entirely innocent of the charges. Many have pointed out the stark contrast between the ostentatious welcome provided to Foreign Direct Investment in the private sector and the minefield which international funding to civil society must traverse. Others have remarked on the relative opacity permitted to funds contributed to political parties via electoral bonds compared with the stringent scrutiny required of nonprofit incomes. For those seeking ease of doing philanthropy, one channel remains – the PM CARES Fund.
Less has been heard on the intent of the additional constraints the amendments impose. The government claims that international contributions to NGOs in India have been misused and that compliance with the onerous reporting required for such funds has been lacking. It has not, however, provided any evidence that the pre-amendment 2010 law was inadequate to the task of remedying such malfeasance. The cancelling of over 23,000 FCRA registrations since 2010 suggests otherwise.
Coming on the heels of the praise lavished on NGOs by senior government functionaries for their outstanding humanitarian response to both, the COVID-19 pandemic and the nationwide distress caused by the summary measures taken to control its spread, the creation of new impediments to civil society work is nothing short of mystifying. As recently as October 17, 2020, the Prime Minister has sought to include civil society as a key partner in the plans to deliver coronavirus vaccines to all Indians.
What might one infer from these contradictions? Some clues might be discerned in the arguments put forth by senior government functionaries. They posit a ‘pure’ form of voluntary civil society action unsullied by formal organisational structures, partnerships with government or the addition of policy advocacy to the civil society repertoire. The government’s warmth towards this form of civil society action is manifest in its outreach to ‘service delivery’ NGOs for both, input to policy and to fill in the vast gaps in last mile public services from healthcare to education, skill development, sanitation and the like. It is also visible in the boundaries defined for the deployment of corporate philanthropy in the form of mandatory CSR. On the other hand, its intolerance for civil society work that focuses on human rights, environmental justice, amplifying muted voices, holding government or business to account, and defending democratic freedoms is equally evident in the kind of NGOs that have been singled out for punitive action, a list that includes Amnesty, Greenpeace, INSAF, Lawyer’s Collective and the like.
The message is crystal clear. Comforting the afflicted is good, afflicting the comfortable is absolutely not. Silent, unquestioning delivery of services by nonprofits, and the philanthropy that supports such work, is fine, even praiseworthy. Any challenge to policy, in design or implementation, is unacceptable. Most Indian donors have proven themselves amenable to these restrictions, either because their own goals are in sync, or to protect themselves, their assets and their interests. International donors focused on augmenting government plans and programmes too will face no significant barriers. It is only the ‘black sheep’ who must be deterred, closely monitored, and made vulnerable to intimidation and harassment through a maze of regulatory hurdles.
It is precisely for these reasons that the International Commission of Jurists has roundly condemned the new amendments to the FCRA as unconstitutional and in violation of international law on freedom of association. They echo the 2016 criticism by the first UN Special Rapporteur on Freedom of Peaceful Assembly and Association who described the 2010 version of the FCRA as failing the test for allowable restrictions on the right to association developed by international human rights bodies.
It completes a vision of state, and executive, supremacy with every institution designed to counteract such untrammelled concentration of power reduced to cheerleader status at best, subservience at worst. At another time and place this vision was embodied in a slogan that has since come to signify some of humanity’s darkest deeds: ‘Ein Volk. Ein Reich. Ein Führer.’
Parliament, the media and, arguably, the judiciary have all been corralled to varying degrees. Women, Dalits, Muslims and other minorities are regularly reminded of their ‘aukat’. Civil society too, is being shown its place.
Ingrid Srinath is Director of the Centre for Social Impact and Philanthropy at Ashoka University. The views expressed here are entirely personal.
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