The year 2004 ended on a tragic note as tens of thousands of lives were lost and many more are struggling to survive in the aftermath of the tsunami that ravaged the coastal areas of South Asia. However, if there is one thing that this tragedy has highlighted is the importance of multilateral cooperation and coordination of national and international non­governmental organizations (NGOs) on issues that concern the poorest and the most vulnerable members of the populace. The disaster has proven that there are issues and crises that extend beyond national boundaries, which demand a response that cannot be confined to the parameters of domestic, let alone government, policy. However, South Asian countries, including India, have been unwilling to acknowledge this fact.

In the case of India, the twin notions of 'self-reliance' and 'national sovereignty' are routinely used to dismiss cross-border, regional or international solutions to common problems, with particular suspicion being directed towards non-governmental initiatives. NGOs, which in many ways form the most responsive and efficient core of all non-state work in India, face serious obstructions in their operations, which are a product of paranoid, arbitrary and often politically motivated government caprice. Their functioning is straitjacketed by a number of government policies that reflect not only a nationalist paranoia about the perceived loss of sovereignty, but a truly despairing lack of governmental commitment to human rights issues in India.

Resisting international involvement  

The bogey of 'national sovereignty' has often been used to stall assistance and cooperation on issues that impact the lives of its citizens. To use a current example, several international organisations based in India have reportedly been unable to join the relief effort in the Andaman and Nicobar Islands that were adversely affected by the tsunami. Much of the area is off limits to foreigners due to security concerns and because the government ostensibly wishes to protect the indigenous people on the islands. However, aid agencies such as Oxfam and Médecins Sans Frontières (MSF) have a long and credible history of delivering humanitarian relief in critical situations. To suggest that the entry of these agencies would jeopardise national security and the indigenous people's way of life is absurd. The agencies have been reported as saying that valuable time is being lost due to the government's refusal to grant permission. The denial of access is inexplicable in a situation where thousands of lives are at risk.

Restricting foreign donor assistance

The Foreign Contribution Regulation Act (FCRA), 1976, is one of the most instructive examples of India's skewed obsession with 'national interest'. An anachronistic Emergency-era statute, the FCRA is used to restrict the work of Indian NGOs by requiring either registration or prior permission for the receipt of foreign funding. Genuine and credible NGOs have continually maintained that scrutiny of NGO accounts and activities is indeed necessary. However, the financial scrutiny should be the task of the Ministry of Finance, not the highly politicised Home Ministry. Besides, it is well accepted that regular criminal justice procedures are sufficient to check any wrongdoing by the NGOs. The Home Ministry has been known to blatantly employ the FCRA as a political tool, basing its decisions on the nature of the issues that individual NGOs are working on and the extent of their criticism of laws and policies.

They also threaten to cancel the registration of NGOs whose activities it finds inimical to the 'national interest.'

Lack of protection for human rights defenders

Human rights defenders form the backbone of a structure that has the potential to be an energetic and vibrant democratic polity. While they work for the realization of the fundamental rights enshrined within the Indian Constitution, the Indian State does not look upon such activists as partners in the democratic process. Instead, it views them with a suspicion, often hostility, regarding them as threats to "national interest." As a result human rights activists, including individual activists, organisations, lawyers, journalists and physicians, find themselves at considerable risk when they take on issues deemed sensitive by the government. The entire range of violations that human rights defenders attempt to address is often directed at the defenders themselves. Thus, torture, preventative illegal or arbitrary detention, disappearances, ill treatment, use of excessive force and violation of due process rights are used by State actors to blunt the efforts of human rights defenders. State actors include, among others, the police, military personnel, paramilitary forces and intelligence officials.

In addition to violating the law to deter defenders, State officers often misuse the law. Preventive detention laws, sections in the Criminal Procedure Code and the Indian Penal Code that allow for preventive detention are applied arbitrarily to harass, intimidate or obstruct peaceful protests by defenders. Human rights defenders in internal conflict areas such as Jammu and Kashmir or the Northeast face a two-pronged threat from State security forces on the one hand and armed opposition groups on the other. NGOs as well as individual activists are under severe pressure to take sides and act accordingly. While defenders in internal conflict areas may be more prone to attacks and harassment by non-State actors, the skewed socio-economic balance in India means that defenders elsewhere also face the disapproval and the strong-arm tactics from members of dominant socio-economic groups, often in concert with the authorities.

Restrictions on the freedom of assembly and association

The Government of India also attempts to curtail the freedom of assembly and association, a crucial function of non-governmental organisations. From mid-1999, NGOs organising international conferences in India have required prior permission from the Ministry of Home Affairs and other relevant ministries. The clearance requirement is not pursuant to any law, rule or guidelines, it is simply the new practice of the Government of India, functioning at the whim of the Government of India. This ad hoc operation places NGOs at a distinct disadvantage in dealing with the Government of India as procedures lack transparency. The clearance requirement procedures are clearly prone to arbitrary use and abuse in the absence of established policies and procedures.

Rendering public interest litigation (PIL) ineffective

While the provisions of the Constitution and the country's international pledges suggest India's commitment to collective rights, the result of these formal commitments is highly questionable. Articles 32 and 226 of the Constitution empower any person to move to the highest courts when there is an infringement of a fundamental right. In the late 1970s and early 1980s, some onerous judicial procedures were relaxed due to liberal Supreme Court judgements. Accepting postcards and telegrams as writ petitions, for instance, benefited bonded labourers and illegally detained women and children. In the landmark 1982 case of

S.P. Gupta vs. Union of India (AIR 1982 SC 149), the Court relaxed the rule of locus standi, orstanding, by announcing that anyone acting in the public interest may file petition in the court on behalf of the disadvantaged. These changes marked the beginning of public interest litigation (PIL) in India, which remains a tool of critical importance to NGOs that provide legal aid to victims of human rights violations.

However, institutional support for PIL has proven to be neither consistent nor sustainable. According to one expert, as the legal framework for PIL is non-existent, "the pace of progress of the PIL movement depends to a large extent on the attitude of the judges." Additionally, the practice of permitting letters and news reports as writ petitions is still rare. Instead, the courts insist on affidavits. The fundamental purpose of PIL to improve access to justice for the disadvantaged has been undermined by the practice of hearing cases associated with prominent names while the same problems raised by unknown individuals have been rejected. With its progressive Constitution, developments in public interest litigation, and a robust civil society, India has a great potential for the protection of collective rights. However, it will require hard work by political leaders and others to make this happen. Placing restrictions on the already limited strategies available to NGOs to work toward the protection of civil liberties poses a significant impediment to such efforts.