NAIROBI/GENEVA – United Nations Special Rapporteur Maina Kiai has published a legal analysis arguing that India’s Foreign Contributions Regulation Act (FCRA) – which regulates foreign funding to certain individuals, associations and companies – is not conformity with international law, principles and standards.
The analysis, which was submitted to the Government of India on April 20, 2016, is available here.
The FCRA, which was enacted in 2010, bars “organizations of a political nature” from accepting foreign contributions. Acceptance of foreign contributions may further be prohibited where the Government “is satisfied that the acceptance of foreign contribution… is likely to affect prejudicially… public interest.”
The law has come under scrutiny in recent years, with some sources reporting that nearly 14,000 NGOs have seen their licenses to receive foreign funding revoked by the Government.
The Special Rapporteur argues that the ability of civil society organizations to access resources, including foreign funding, is a fundamental part of the right to freedom of association under international law, standards, and principles – and more particularly part of the right to form an association.
He further asserts that India’s limitations on access to foreign funding do not meet “the stringent test for allowable restrictions” under international law. This test requires that restrictions be (1) prescribed by law; (2) 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 in a democratic society.” The FCRA fails on all three prongs of the test.
First, Kiai says, 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.”
“This appears to give the government broad discretionary powers that could be applied in an arbitrary and capricious manner,” the Special Rapporteur writes in the analysis. “The definition of ‘political nature’ in the FCRA appears to be overly broad and could encompass almost all potential activities of an organization, including those that are allowed and even encouraged by the ICCPR to exist, such as promoting knowledge of basic rights and participation in government.”
Second, the FCRA’s stated purpose of prohibiting “acceptance and utilization of foreign contribution or foreign hospitality for any activities detrimental to the national interest” is not among those specifically enumerated in the ICCPR. Economic or public interests are not among the enumerated bases for limiting fundamental human rights in the ICCPR. Moreover, national interests and economic interests are not synonymous with national security or public order.
“The Human Rights Committee has found that when a State invokes national security and protection of public order as a reason to restrict the right to freedom of association, the State party must prove the precise nature of the threat,” Kiai writes. “Restrictions on the right to freedom of association based on national security concerns must refer to the specific risks posed by the association; it is not enough for the State to generally refer to the security situation in the specific area.”
Finally, the Special Rapporteur notes that a total ban on access to foreign funding for organizations found to be of a “political nature” or acting against economic or national interest is likely to disproportionately impact certain groups. Among these groups, he writes, are those engaged in critical human rights work, those which address issues of government accountability and good governance, and those which represent vulnerable and minority populations or views.
The full analysis is available here in English.