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The Government of India has recently intensified its efforts to restrict the activities of non-governmental organisations (NGOs) by breathing new life into an anachronistic, Emergency-era statute. The Government's arbitrary application of the Foreign Contribution (Regulation) Act of 1976 (FCRA) at the behest of particular political interests infringes the fundamental rights to freedom of association and expression guaranteed by international law and the Constitution of India. Moreover, it flouts the most basic norms of fairness and due process enshrined in the Constitution of India and other Indian legislation.

The FCRA requires all Indian organisations and individuals that seek to receive foreign contributions to receive clearance from the Ministry of Home Affairs (the Home Ministry), in the form of either registration or prior permission. In recent weeks, the Home Ministry has deployed the FCRA as a blatantly political tool, seeking to intimidate NGOs that have been critical of the Government and its policies. On 25 September 1999, two Bharatiya Janata Party (BJP) officials - in separate statements on the same day - called for the investigation and punishment of 13 NGOs for their sponsorship of a newspaper advertisement criticising the party's positions on women's issues. The party officials assailed these organisations as "anti-national and anti-Indian" - not only on account of their sponsorship of the advertisement, but also based on their criticism of the Pokhran nuclear tests of May 1998.

Within days of these statements, the Home Ministry dutifully served notice upon several of the 13 NGOs presumptively classifying the groups as "organisation[s] of a political nature, not being a political party" under Section 5(1) of the FCRA. If unable to rebut this classification, these NGOs would be required to obtain prior permission from the Home Ministry before receiving any foreign contributions. When another NGO, the Volunteer Action Network India (VANI), publicly defended the groups, it too was promptly informed that the Home Ministry intended to cancel its registration to receive contributions from abroad without prior permission.

How does the Home Ministry justify its attempt to cancel the FCRA registrations of these groups and their supporters? The Show Cause Notice served upon the NGOs alleges that these voluntary associations "ha[ve] been associated with the release of certain advertisements in the press and with certain documents the contents of which are in the nature of comments of a political nature." The vagueness of this McCarthyesque description of the alleged misconduct is exceeded only by its potential chilling effect on the fundamental rights of Indian citizens to engage in collective political and social action. As of 6 October 1999, the Home Ministry had retaliated against over one dozen NGOs for their association with "certain advertisements" and "certain documents."

Curiously, the Home Ministry has been highly selective in its efforts to regulate foreign funds in Indian political and social life. Sangh Parivar (the family of Hindu Fundamentalist Organisations) and Government officials have expressed outrage over the role allegedly played by foreign funding in support of Christian and Muslim organisations. However, Sangh Parivar organisations are among the highest recipients of foreign contributions in India. Reports indicate that the Vishwa Hindu Parishad (VHP; or the World Hindu Council) has raised at least Rs. 86 million (approximately $US 2 million) from the United States since 1980. Much of this money has been used to fund schemes that seek to intimidate tribal peoples from converting to Christianity or Islam, often under threat of violence. While other reports of misuse of foreign funds raised by "VHP America" abound, at no time has the Government sought to investigate this influx of foreign capital.

Even the BJP itself - which, as a political party, is subject to more stringent restrictions under the FCRA - has received substantial foreign contributions. The party's United States arm, the "Overseas Friends of the BJP," routinely hosts expensive fund-raisers and has sent large delegations to India to campaign on behalf of the BJP - trips that are presumably financed with foreign funds. The Home Minister has, however, turned a blind eye to this conduct by members of his ideological fraternity.

These examples reveal a pattern of arbitrary enforcement of the FCRA that violates fundamental freedoms guaranteed by the Constitution of India and international human rights law. On its face and as applied, the FCRA violates Article 19 of the Constitution of India and several international human rights instruments that guarantee freedom of expression and freedom of association including Articles 19(3) and 22(1) of the International Covenant on Civil and Political Rights (ICCPR) - ratified by India in 1979. The Government's arbitrary application of the FCRA also violates guarantees of equality and due process under Articles 14 and 21 of the Indian Constitution. Moreover, the decision to target NGOs that criticize the Government's record on women's rights raises serious questions about the Government's commitment to implementation and enforcement of the Convention on the Elimination of All Forms of Discrimination of Women, which India ratified in 1993.

The Home Ministry's deployment of the FCRA as a political weapon comes on the heels of another recent assault on the political and social space for NGOs in India. For example, the Government's recent imposition of an arbitrary clearance requirement for NGOs organising international conferences contravenes India's constitutional guarantees and international commitments. (See Human Rights Features, India Restricts NGO Meetings, HRF/7/99, 20 September 1999). Such efforts signal an increasing unwillingness on the part of the Government to tolerate criticism and dissent.

While the Government has a legitimate interest in holding NGOs accountable for financial or other wrongdoing, normal regulatory and criminal justice procedures provide sufficient institutional resources to accomplish this task. Narrowly-tailored financial reporting requirements for NGOs serve legitimate governmental interests and should remain in place. However, these laws should be administered by the Ministry of Finance, rather than the highly politicised Home

Ministry. And to the extent that the direct channels of political participation are to be reserved for Indian citizens, the proper targets of regulation are political parties and the candidates they field for office, not voluntary organisations and advocacy groups. Democracy and human rights depend upon the vitality of civil society which, in turn, depends upon the ability of NGOs to operate free of arbitrary legal obstacles. The Government's heavy-handed use of the FCRA to restrict the legitimate activities of politically-disfavoured NGOs represents yet another troubling retreat from India's democratic tradition.

-Human Rights Features

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