Restrictions under the Foreign Contribution Regulation Act (FCRA)

Open Letter

To: Chairperson Justice H.L. Dattu and Members of the National Human Rights Commission

Re: Restrictions under the Foreign Contribution Regulation Act (FCRA)

Paris, 22 August 2017

Honorable Justice Dattu,

I am writing to express FIDH’s deep concern over the Indian government’s ongoing refusal to renew the license of our member organization, Centre for Promotion of Social Concern’s (CPSC, also known as People’s Watch), under India’s Foreign Contribution Regulation Act (FCRA).

On 29 October 2016, the Ministry of Home Affairs (MOHA) refused to renew CPSC’s license to receive foreign funding under Article 6 of the FCRA. As a result, CPSC’s bank accounts have been frozen.

The National Human Rights Commission (NHRC) issued an order dated 16 November 2016, in which it held that the FCRA’s license non-renewal was neither legal nor objective and that it impinged upon the rights of human rights defenders with regard to access to funding, including foreign funding. The NHRC instructed MOHA to provide information by 14 December 2016 on the number of NGOs to which MOHA denied the renewal of their licenses under the FCRA and the reasons for the non-renewal. More than eight months have now elapsed and MOHA has not provided the requested information.

CPSC has now taken the initiative to challenge MOHA’s refusal to renew its license before the Delhi High Court. [1] In response to the proceedings, MOHA filed a response, which accused CPSC Executive Director Henri Tiphagne of using “foreign contributions” to “project the image of India in a poor light” by providing information to UN Special Rapporteurs and foreign embassies. From these statements, it is readily apparent that MOHA’s non-renewal of CPSC’s license is an act of reprisal for CPSC’s legitimate human rights activities.

FIDH notes that on 17 December 2015 India voted in favor of UN General Assembly Resolution 70/161 on human rights defenders. [2] On 24 March 2016, India also voted in favor of UN Human Rights Council Resolution 31/32 on protecting human rights defenders. [3] Both resolutions condemn acts of reprisal against human rights defenders, including for cooperating with international institutions, and call upon states to combat impunity for such acts by bringing perpetrators to justice. In addition, the UN Guidelines against Intimidation or Reprisals (“San José Guidelines”), adopted on 26 June 2015, place on states the responsibility to “avoid acts constituting reprisals and to prevent, protect against, investigate and ensure accountability” for such acts. [4] India should uphold the principles enshrined in these documents and refrain from reprisals against human rights defenders.

FIDH recalls that the right to funding is an integral part of the fundamental right to freedom of association, codified in Article 22 of the International Covenant on Civil and Political Rights (ICCPR), to which India is a state party. The right to foreign funding, as an essential part of freedom of association, is enshrined in Article 13 of the UN Declaration of Human Rights Defenders and has been recognized by numerous UN human rights monitoring mechanisms, including the UN Human Rights Committee, the UN Special Rapporteur (UNSR) on the situation of human rights defenders, and the UNSR on the rights to freedom of peaceful assembly and of association. [5]

In his analysis of 20 April 2016, the UNSR on the rights to freedom of peaceful assembly and of association found that the FCRA was not in conformity with international law because India’s limitations on access to funding did not meet the “stringent test” of necessity and proportionality. [6] In addition, the FCRA’s requirement that associations periodically re-register is inconsistent with recommendations made by the Rapporteur in 2011. [7]

On 16 June 2016, the UNSR on human rights defenders and the UNSR on the freedom of expression joined the UNSR on the rights to freedom of peaceful assembly and of association to call upon India to repeal the FCRA. [8] In addition, during the third Universal Periodic Review of India in May 2017, six states made recommendations to India to review and amend the FCRA to bring it into accordance with international law. [9]

FIDH respectfully calls on the NHRC to immediately issue interim orders for an urgent hearing on the Indian government’s ongoing abuse of the FCRA and to intervene in the related legal proceedings before the Delhi High Court.

FIDH also calls on the NHRC to ensure that the Indian government upholds its obligation to respect the right to freedom of association, by removing all illegitimate obstacles for human rights organizations to receive foreign funding, in accordance with international standards. This can be achieved by appointing an independent team of experts tasked with conducting an analysis of the FCRA and making recommendations to the government to bring the Act in line with India’s international obligations and in accordance with the findings of the UNSR on the freedom of association and assembly.

Thank you for your attention to this important matter.


Dimitris Christopoulos
FIDH President

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