The FCRA: Modi’s Secret Weapon

On April 30, 2013, the Indian Social Action Forum (INSAF)—an umbrella organization of over 700 civil society organizations—received a non-descript notice from the Ministry of Home Affairs that revoked the INSAF’s registration and froze its assets in an effort to allegedly protect “the public interest.” This was not the first time that the INSAF had encountered resistance to its activities. Both the INSAF and its member organizations had often sparred with the Indian government over issues of environmental policy including the construction of nuclear power plants and the legalization of GMOs. Thanks to an ambiguous new section of the legal code, however, the Indian government has the authority to freeze assets and rescind the registration of organizations that receive unapproved foreign funds and/or pose a threat to “the public interest.” The true motivation behind the deregistration of the INSAF was immediately obvious to the organization’s leadership: they were being targeted for their activism.

Prime Minister Narendra Modi addresses the 2014 UN General Assembly  (UN Photo/Cia Pak)
Prime Minister Narendra Modi addressing the 2014 UN General Assembly (UN Photo/Cia Pak)

The notice delivered to the INSAF in April was issued in accordance with Sections 13(1) and 14(1-2) of the Foreign Contribution Regulation Act of 2010. Based on an older 1973 law designed to shore up foreign currency reserves, the ambiguity of the amended FCRA allows for nefarious government overreach. Section 13(1) states: “Where the Central Government, for reasons to be recorded in writing, is satisfied that pending consideration of the question of canceling the certificate on any of the grounds mentioned in sub-section (I) of section 14…[it may] suspend the certificate for such period not exceeding one hundred and eight days.” Section 14 is more severe: “The Central Government may, if it is satisfied after making such inquiry as it may deem fit cancel the certificate if, in the opinion of the Central Government, it is necessary in the public interest to cancel the certificate…”

Objecting particularly to the ambiguity of Section 14, and drawing significant support from the American Bar Association’s Center for Human Rights as well as the international CSO community, the INSAF filed a strongly worded petition with the High Court of Delhi. In September, five months after the Ministry’s notice had been delivered to the INSAF, the High Court finally dismissed the deregistration and thawed the organization’s accounts. The FCRA, however, was upheld.

The attack on the INSAF was just the beginning. In the last two years, Modi’s government has used the FCRA to target thousands of CSOs that have criticized government policies. On June 9, 2015, 971 organizations, including several prominent public universities and local chapters of international NGOs, were stripped of their registration for accepting unapproved funds. Greenpeace activist Priya Pillai, herself a recent victim of FCRA regulations, noted that “The issue is not related to the source of our funding or FCRA. It is a larger political issue under which NGOs are being targeted and persecuted for working, as well as, raising the voice of the poor, weak, and the deprived.” Ms. Pillai is partially correct. While the government’s use of the FCRA is, indeed, a reflection of larger political issues, repeal of the amended FCRA would be an appropriate first step on the road to philanthropic freedom in India.

In the 2015 Index of Philanthropic Freedom, India maintains a mid-range composite score of 3.2, but in the area of cross border flows it scores just 2.1 out of a possible 5. In his justification of this low score, Noshir Dadrawala of the Centre for Advancement of Philanthropy emphasized the onerous requirements of the FCRA: “It is important to note that no CSO operating in India whether registered or not can receive foreign contributions without first obtaining prior permission from the Home Ministry.” In order for civil society to thrive and international philanthropic funds to flow into India, the government must amend the FCRA and end its attack on the third sector.

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A New Iron Curtain

Over the last five years, the Russian Federation has been criticized by international NGOs over the administration of elections, the national ban on “gay propaganda,” and the seizure of Crimea. NGOs are needed now, more than ever, to prevent human rights abuses and independently monitor the actions of Vladimir Putin’s government. Unfortunately, recent amendments to Russian federal law have placed substantial restrictions on the organization and development of NGOs.

Signed on July 20, 2012, Federal Law 121-FZ–colloquially referred to as the “Foreign Agent Law”– requires NGOs that receive funds from abroad and/or engage in “political activities” to register with the Ministry of Justice (MoJ) as an “organization carrying the function of a foreign agent.” According to the federal law, organizations that meet these vague requirements are required to submit biannual activity reports and quarterly expense reports and cooperate with authorities during mandatory annual inspections. In the event that an NGO “carrying the function of a foreign agent” does not voluntarily register with the MoJ and/or fails to comply with NGO regulations, the organization may be fined and/or closed.

In mid-February 2013, President Putin addressed officers of the FSB (Russia’s intelligence agency) and noted that 121-FZ “should certainly be executed.” Shortly thereafter, surprise inspections on hundreds of NGOs were carried out by the MoJ. As the smoke cleared from this fusillade last year, Human Rights Watch reported that 55 groups had received “warnings,” 20 had received official “notices of violation,” and the prosecutor’s office and MoJ had filed 12 suits against the administrators of offending organizations. These NGOs were some of the first victims of the “Foreign Agents Law.”

Among the many groups recently targeted by the MoJ, the experiences of Golos, Rakurs, and Man and Law serve as a kind of representative sample of the types of organizations involved in these investigations.

Ivan Sekretarev Associated Press

Golos Deputy Director Grigory Melkonyants (Source: Ivan Sekretarev Associated Press)

The first organization prosecuted under 121-FZ was the award winning voter rights organization Golos (Voice). In the months leading up to the 2012 election, Golos’ monitors reported multiple violations and rampant voter fraud. Shortly thereafter, the MoJ accused the organization of “receiving foreign funds” and “engaging in political activity on Russian territory.” While Golos received funding from USAID in the past, it has not received foreign funding since the amendments were effected. Furthermore, it argued that it was not involved in political activities, since it works “on behalf of the people rather than specific political forces.” In spite of this, Golos was still fined 300,000 Roubles (~10,000 USD), placed on the MoJ’s registry, and closed for six months in June 2013. Following the decision, Golos closed some of its regional arms and, in September, lost its most recent appeal.

Tatyana Vinnichenko photo by Alexander Borisov

Rakurs Director Tatyana Vinnichenko (Source: Alexander Borisov)

Rakurs (Perspectives), an oft profiled and well-respected LGBT organization based in Arkhangelsk, was founded in 2007 to provide “socio-psychological and legal support to the LGBT community.” According to the group’s leader Tatyana Vinnichenko, the MoJ conducted a nearly month long investigation of Rakurs’ organizational activities in November and December 2014. The final report from the MoJ linked Rakurs to the political activism of Nikolai Alekseev, allegations that Vinnichenko has firmly denied: “We have a community center… We provide advisory services, training and so on. In my opinion, it is impossible to call us [a] political organization.” As in the Golos case, the MoJ ignored these objections and, on December 15, 2014, Rakurs was involuntarily placed on the Registry. Although the organization’s operations continue and it plans to appeal the decision, Vinnichenko is not optimistic: “It is clear that we will probably not be able to work with the label of ‘foreign agent.’ We don’t have much faith. But it’s necessary to use all the legal mechanisms.”

Man and Law, an NGO focused on combating corruption in the Mari-El Republic, has also run afoul of the “Foreign Agents Law.” On April 24, 2013, Man and Law’s leaders received a warning from the Prosecutor’s Office that cited political elements of the organization’s charter including its efforts to “participate in elaboration of policy by state institutions, organize public gatherings, meetings and demonstrations, and come up with propositions for state institutions and to take part in election campaigns.” The warning also explained that foreign funding necessitated registration with the MoJ. Man and Law refused to alter its charter and, on December 15, it was cited with an “Administrative offense under Part 1, Article 19.34 of the Administrative Offences Code of the Russian Federation” which criminalizes activities carried out by an NGO acting as a foreign agent. The local Constitutional Court ruled against the organized and imposed 300,000 Rouble fine. While Man and Law still operates today, it filed an appeal with the Magistrates court on January 12, 2015 in which it condemned the “illegal” actions of the MoJ and the arbitrary nature of the “Foreign Agents Law.” The court has not yet heard the case.

The issue here is clear. With its bureaucratic burdens, mandatory inspections, and hefty fines, the “Foreign Agents Law” handicaps the development of civil society in Russia and strongly discourages international investment. While only a few of Russia’s 220,000 NGOs have been investigated so far, more inspections, fines, and closures will surely follow. Once again, an Iron Curtain is descending, but this time it is falling over Russia’s NGOs.