WHAT IS FCRA?
Foreign Contribution (Regulation) Act, No. 42 of 2010.
“An Act to… regulate the acceptance and utilization of foreign contribution or foreign hospitality by certain individuals or associations or companies to prohibit acceptance and utilization of foreign contribution or foreign hospitality for any activities detrimental to the national interest and for matters connected therewith or incidental thereto"(PREAMBLE)
section 3 (1) - defines a list of individuals and entities barred from accepting foreign contributions. “Organizations of a political nature” are among them.
section 9(e)(ii)- empowers the Central Government, inter alia, to prohibit acceptance of foreign contributions where the Government “is satisfied that the acceptance of foreign contribution… is likely to affect prejudicially… public interest.”
Section 12(4) FCRA 2010 sets out the conditions for registration under the Act. These include that the acceptance of foreign contribution is not likely to affect prejudicially, inter alia, the scientific or economic interest of the State or the public interest.
International human rights standards on freedom of association: mIs access to resources, in particular foreign funding, part of the right to freedom of association under international law, standards and principles?
- ART 22 ICCPR + ART 14 OF COI. "India acceded to the ICCPR on April 10, 1979.
- The Indian Supreme Court has held that the rights guaranteed by the Covenant ‘elucidate’ and ‘effectuate fundamental rights guaranteed’ by the Indian Constitution. See People’s Union for Civil Liberties v. Union of India (1997) 3 SCC 433 (where the Court found that ‘…it would suffice to state that the provisions of the covenant [ICCPR], which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can certainly be relied upon by courts as facets of those fundamental rights and hence, enforceable as such.)
- The right to freedom of association is not an absolute right, but is subject only to the limitations permitted by international law. The right to access foreign funding is protected by Article 22.
If the right to access resources is part of the right to freedom of association, when and how may States restrict access to foreign funding under international law, standards and principles?
- In Belyatsky v. Belarus, that restrictions on the right to freedom of association must meet the following three requirements: (1) prescription by law; (2)LEGITIMATE AIM: the law may be imposed solely to protect national security or public safety, public order, public health or morals, or the rights and freedoms of others; and (3) NECESSARY FOR DEMOCRATIC SOCIETY: the restrictions must be ‘necessary in a democratic society.’
On its face, the FCRA does not provide the necessary precision required for clarity and notice. It lists examples of groups that could be defined as having a ‘political nature’, but does not provide further definitions or examples for the terms ‘political objectives,’ ‘political activities,’ or ‘political interests.
Further, section 12(4)(f) of the FCRA disqualifies from eligibility to receive foreign funding all those whose actions may be construed as “likely to affect prejudicially… the economic interest of the State” or “public interest”. These terms are not defined in a way that would enable a CSO to know in advance whether its activities could reasonably be construed to be in violation of the Act.
A complete or blanket ban on access to foreign funding for groups engaged in activities of a ‘political nature’ in order to maintain and protect a vague ‘national interest’ does not meet the ICCPR’s proportionality requirement. The same applies to groups engaged in activities which may be determined contrary to the ‘economic interest of the state’ or ‘public interest’
CONCLUSION:
The Union of India remains obligated to interpret the right to form an association as defined in its constitution in conformity with international law, standards and principles. Under international law, standards and principles, the right to form an association includes the right to access resources, including foreign funding.
The Foreign Contribution Regulation Act and Regulations appear to contravene the Union of India’s obligations under the ICCPR to ensure the rights of all under its jurisdiction to free association because it imposes a total ban on associations’ access to foreign funding on vaguely defined grounds for a broad purpose not included in the ICCPR’s enumerated list of legitimate aims.
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