NHRC Notice to Ministry of Home Affairs on FCRA non-renewal for few NGOs: An Examination of Entities

Introduction & Background

Recently, the FCRA Wing of the Home Ministry undertook the process of renewal of FCRA registrations. This exercise is done once in five years, as per FCRA-2010/FCRR-2011. Nearly 20,000 NGOs got their FCRA registrations renewed. 11000 and odd did not apply for renewals at all while 1736 NGOs were asked to submit additional documents and thus a decision on their renewal status was kept pending.

Around two years ago, there were around 40000 NGOs in the FCRA list. Of these, around 11000 lost their FCRA status about an year ago, as they had not submitted the mandatory annual returns in several years. Thus, out of the total 40000, 30000 were ‘surviving’ prior to the renewal exercise of June-July 2016. Of these, around 11000 are gone now (well, almost!), as they didn’t apply for renewal, leaving us with around 20000 NGOs with FCRA registration. This does not come to us as a surprise, as only about 20000 NGOs were active within the FCRA domain over the last five years, anyway. Active means what? Active means that they were filing annual returns properly etc. As a matter of fact, the entire bulk analyses of FCRA returns that you may have seen at fcraanalyses.blogspot.in has been based on these 20000 NGOs only. Thus, the narrative which you may have heard of Government reducing the number of FCRA-NGOs from 40000 to 20000 is somewhat incorrect. Only about 20000 were active always. The rest were dormant (they may have been active on the field, harvesting souls etc, but they were “silent” in filing returns).

The purpose of this Post is anyway different. Government of India, in a bold move, appears not to have renewed the FCRA license of 25 NGOs for their indulgence in ‘anti-national activities’. See this Deccan Herald article for example. The list of these 25 NGOs is not available on the FCRA website; however, many mainstream media (MSM) sources provide a partial list. These are: Lawyers Collective (MH/83780742), Centre for the Promotion of Social Concerns (CPSC) (TN/75940138), Compassion East India (WB/147120584), Sanchal Foundation (alias Hazard Centre) (DL/231650268), Indian Social Action Forum (INSAF) (DL/231660846) and Institute of Public Health (KA/94421350).

In particular, we find the non-renewal of FCRA registration of Compassion East India (CEI), to be the boldest act of the Ministry of Home Affairs since May 2014. We applaud them for the same. Read these Posts [1, 2] for a background on CEI.

Centre for the Promotion of Social Concerns (CPSC) is in Chokkikulam, Madurai, Tamil Nadu. One of its prominent functionaries is Mr. Henri Tiphagne. CPSC is widely described in MSM as “People’s Watch”. Mr. Tiphagne received the 8th Amnesty International Human Rights Award in 2016 (he is the first Indian to receive the same). CPSC’s foreign fund inflows over the years is provided in the Table below:

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Data from FCRA Returns site

CPSC’s major donors include Misereor (German Catholic Bishops’ Organisation for Development Cooperation), Bread for the World (a Protestant Development Service; Germany’s Evangelischer Entwicklungsdienst merged with it recently; read here for a background on BfW & EED), Action Aid, Dan Church Aid, Cordaid, Asian Forum for Human Rights and Development-Bangkok (AFHRD) and so on. CPSC is quite popular among our State Governments. For instance, CPSC runs ‘Human Rights Awareness’ programmes in several public schools, for instance. [Of the above donors, remember AFHRD; we will see them again in this Post].

Enter NHRC

The National Human Rights Commission (NHRC) was established via the Human Rights Act-1993. It is a statutory body. It is headed by Shri. Justice (retd) HL Dattu and consists of Shri. Justice (retd) Cyriac Joseph and Shri. Justice (retd) D. Murugesan among others, as its members.

On 16th November 2016, NHRC issued a notice to the Ministry of Home Affairs after it “received a complaint alleging draconian approach of GoI in regard to renewal of FCRA registration of human rights defenders” (i.e., HR NGOs). The notice mentioned that NHRC has been informed by 7th Human Rights Defender Forum-Colombo on the FCRA non-renewal of CPSC. However, NHRC also adds that “it took suo moto cognizance of the matter” and issued the said notice.

In the following, we shall examine the entities mentioned in the notice. We do not pass judgement on anyone. We just collate and share information that is publicly available and mostly culled from Government/statutory_body websites themselves.

Our Observations

  1. Mint reports that CPSC had approached the Delhi High Court on Nov. 7, 2016 against the non-renewal of its FCRA registration. In a subsequent hearing of this case on Nov. 18, 2016, the HC refused to de-freeze the FCRA Bank account of CPSC. It is thus clear that the matter of non-renewal of FCRA registration of CPSC was under the consideration of the Court, i.e., it was sub-judice.

Section 9 (xi) of the Gazette Notification of NHRC dated 1997 says that “the   Commission may not ordinarily entertain complaints which are sub-judice”.

Thus, the suo-moto cognizance of FCRA non-renewal of CPSC and other unnamed Human Rights NGOs by NHRC is somewhat perplexing.

  1. Is the non-renewal of FCRA registration of some NGOs within the ambit of NHRC? Here too, we are a little perplexed. The functions of NHRC are stated clearly on page 8 (Chapter III.12) of this document, which is the NHRC Act-1993. The intervention in the FCRA matter appears to be unrelated to any of the Functions of NHRC listed there, except two:
    1. (i) encourage the efforts of non-governmental organisations (NGO) and institutions working in the field of human rights;
    2. (j) such other functions as it may consider necessary for the protection of human rights.

Was the suo-moto cognizance of FCRA action taken under Chapter III.12.i, i.e., “to encourage the efforts of NGOs”? Or, was it under the overarching ambit of III.12.j which is “such other functions as it my consider necessary”? We do not know.

However, the ambit question bothers us. Let us suppose, that in future, the FCRA Wing takes some action against the FCRA-NGO, World Vision of India (WVI), Chennai (TN/75900011), on some (assumed) violations of FCRA Act. As WVI is involved in a variety of works related to Child Development, Advocacy of Child Rights and so on (none of which we approve, by the way), will the National Commission for Protection of Child Rights (NCPCR) issue a notice to Ministry of Home Affairs? Or, let us say, MHA takes action on the FCRA-NGO, Women Power Connect for lobbying activities (see this Indiafacts story). Will the National Commission for Women issue notice to the FCRA Wing?

Thus, the issuance of a notice by NHRC on the non-renewal of FCRA registration of CPSC is perplexing.

  1. The NHRC notice to MHA quotes the “analysis” done by the UN Special Rapporteur on rights to freedom of peaceful assembly and of association (Mr. Maina Kiai) on our FCRA Act. NHRC directs MHA to reply to it on how “the litmus test laid down by the UN Special Rapporteur is applied in the adjudication by the Central Government.” (emphasis added).

It is indeed perplexing as to why the Ministry of Home Affairs has to bother about the report of an external agency (UN Special Rapporteur) in its (MHA’s) application of an Indian law (FCRA).

Leaving that argument aside, let us examine this so-called analysis of the UN Special Rapporteur on Human Rights on our FCRA law. Given below are extracts from two documents:

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In Red is an extract from the report of the UN Special Rapporteur, dated April 20, 2016. In Blue is an extract from a report of the Center for Human Rights, American Bar Association (ABA), dated March 06, 2015. Both documents pertain to an “analysis” of our FCRA Act. The latter is prepared by the American Bar Association and was sent to the UN Special Rapporteur on Freedom of Association and Assembly [P.S.: The ABA document should not be construed as the policy of ABA, a disclaimer in the document mentions]. They are nearly verbatim copy-paste as seen in the above extracts. Readers are suggested to examine both the documents for a similar comparison of paragraphs. It is also to be noted that the UN Special Rapporteur’s analysis/report does not cite/acknowledge the report from the American Bar Association. We do not care from whom the UN Special Rapporteur obtained “his” analysis on our FCRA. However, it is mighty perplexing that my Nation’s NHRC depends on such a “borrowed” report/analysis.

  1. In its notice to MHA, NHRC mentions that a certain “7th Human Rights Defender Forum (HRDF)-Colombo” informed NHRC to intervene in the non-renewal of FCRA licence for CPSC. What is this entity, i.e., HRDF? HRDF is a meeting of so-called Human Rights NGOs, held during Nov. 14-16, 2016. It was organized by a Bangkok based Organization called Asian Forum for Human Rights and Development (AFHRD). Among other donors, the meeting was also supported by Ford Foundation. To our knowledge, AFHRD is not registered as any society/trust/company in India.

Although NHRC mentions that it took suo moto cognizance of the FCRA non-renewals, it also mentions that it originally received the complaint from HRDF/AFHRD which does not have a Indian presence. We leave it to the readers on the appropriateness and locus standi of a foreign entity complaining to our statutory body.

  1. NHRC organized a ‘National Workshop on Human Rights Defenders’ on Feb. 19, 2015 in which one of its former members, Mr. Satyabrata Pal, was the Chief Guest. In his talk, he laments that “the revised Foreign Contribution Regulation Act (FCRA) was passed to browbeat Human Rights Defenders”. The FCRA Act was revised in year 2010 and the rules were framed in 2011. Minor amendments to the rules (FCRR) were made in December 2015. So, it is quite bizarre that NHRC organized a meet in which the above was said. Mr. Pal also bemoaned that while the National Advisory Council (2004-2014) consisted of some Human Rights Defenders, the newly constituted Niti Aayog did not have any.

These remarks on an Indian law (FCRA) in an event organized by a Constitutional body  perplexes us quite a bit.

  1. NHRC has many Core Groups. One of them is a Core Group of NGOs. The minutes of the meeting of the Core Group of NGOs of NHRC held on Aug. 9, 2016 is available here. The meeting appears to have been chaired by the Chairperson, NHRC. One of the members of this Core Group is Mr. Mathew Philip, who belongs to an NGO called South India Cell for Human Rights Education and Monitoring (SICHREM). SICHREM has an alias and it is Manasa Centre for Development and Social Action. SICHREM is a FCRA-NGO (KA/94420845) and receives foreign funds from Misereor, Forum Asia-Bangkok (AFHRD), Dan Church Aid, Norwegian Human Rights Fund among others. In the Core Group of NHRC meeting held in August 2016, Mr. Philip raised the “issue of NHRC’s silence on provisions of FCRA being used against a host of human rights defenders”. An elaborate discussion on this matter that took place in the Core Group Meeting is also provided in the minutes and it was decided that members of the Core Group would write to NHRC on their views and on their requirements for amendments to FCRA (see page 16 of the Minutes). The Core Group of NGOs of NHRC was reconstituted on Sep. 23, 2016. Many of them appear to be functionaries of FCRA-NGOs.
  2. According to this NHRC document, Mr. Henri Tiphagne of CPSC was a member of the Core Group of NGOs of NHRC in November 2010. The same is also attested by this document (see page 99).
  3. An undated webpage on NHRC says that Mr. Henri Tiphagne is a member of a “Core Group to serve as a monitoring mechanism for consultation with NGOs in the Commission”. Google informs (not sure how reliable it is), that the page was created on Apr 1, 2002.

Summary

There are too many perplexing issues here: (i) sub-judice matter (ii) ambit of NHRC (iii) Copy-paste nature of UN Special Rapporteur report etc. The creme de la creme is that Mr. Tiphagne himself appears to be (or to have been) associated with NHRC. Both Mr. Tiphagne’s organization (CPSC) and SICHREM (whose Mr. Philip is a member of the Core Group of NGOs in NHRC) have received funds from Asian Forum for Human Rights and Development-Bangkok on whose “information” NHRC took “suo moto” cognizance of the matter.

Examining all the above, the word which comes to our mind is “propriety”. It might have come in your mind too (thanks for reading thus far, by the way!).

Well, that is all we have come across on entities, individuals mentioned in the NHRC Notice to the Ministry of Home Affairs. To repeat: We pass no judgement/opinion on any of them. The reader is expected to read the above slowly and assimilate the same.

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NHRC Notice to Ministry of Home Affairs on FCRA non-renewal for few NGOs: An Examination of Entities