What is Foreign Contribution (Regulation) Act, and how does it control donations?
The Supreme Court is hearing a petition on 25 January 2022 pleading that around 6,000 non-governmental organisations (NGOs) whose Foreign Contribution Regulation Act (FCRA) registration was not renewed by the Ministry of Home Affairs (MHA), should be allowed to continue receiving and utilizing foreign funds until the Covid-19 pandemic is over.
The FCRA registrations of about 5,900 NGOs ceased to be active after 31 December 2021, owing to either the NGOs not applying for renewal before the due date or the MHA refusing their renewal for alleged violation of the Act.
On 25 December last year, the MHA refused to renew the FCRA registration of Mother Teresa’s Missionaries of Charity, based on “adverse inputs”. The registration was, however, restored on 6 January 2022, and Missionaries of Charity’s FCRA certificate has now been made valid until the end of 2026.
The FCRA was enacted during the Emergency in 1976 in an atmosphere of apprehension that foreign powers were interfering in India’s affairs by pumping in funds through independent organisations. These concerns had been expressed in Parliament as early as in 1969.
The law sought to regulate foreign donations to individuals and associations so that they functioned “in a manner consistent with the values of a sovereign democratic republic”.
An amended FCRA was enacted under the UPA government in 2010 to “consolidate the law” on utilisation of foreign funds, and “to prohibit” their use for “any activities detrimental to national interest”. The law was amended again by the current government in 2020, giving the government tighter control and scrutiny over the receipt and utilisation of foreign funds by NGOs.
Broadly, the FCRA requires every person or NGO wishing to receive foreign donations to be registered under the Act, to open a bank account for the receipt of the foreign funds in State Bank of India, Delhi, and to utilise those funds only for the purpose for which they have been received and as stipulated in the Act.
They are also required to file annual returns, and they must not transfer the funds to another NGO. The Act prohibits receipt of foreign funds by candidates for elections, journalists or newspaper and media broadcast companies, judges and government servants, members of legislature and political parties or their office-bearers, and organisations of a political nature.
NGOs that want to receive foreign funds must apply online in a prescribed format with the required documentation. FCRA registrations are granted to individuals or associations that have definite cultural, economic, educational, religious, and social programmes.
Following the application, the MHA makes inquiries through the Intelligence Bureau into the antecedents of the applicant, and accordingly processes the application. Under the FCRA, the applicant should not be fictitious or benami; and should not have been prosecuted or convicted for indulging in activities aimed at conversion through inducement or force, either directly or indirectly, from one religious faith to another.
The applicant should also not have been prosecuted for or convicted of creating communal tension or disharmony; should not have been found guilty of diversion or misutilisation of funds; and should not be engaged or likely to be engaged in the propagation of sedition.
The MHA is required to approve or reject the application within 90 days. In case of failure to process the application in the given time, the MHA is expected to inform the NGO of the reasons for the same.
For how long is approval granted?
Once granted, FCRA registration is valid for five years. NGOs are expected to apply for renewal within six months of the date of expiry of registration. In case of failure to apply for renewal, the registration is deemed to have expired, and the NGO is no longer entitled to receive foreign funds or utilise its existing funds without permission from the ministry.
The FCRA registration of close to 5,900 NGOs, including Oxfam India Trust and Indian Medical Association, lapsed on 31 December last year. According to sources, the registration of as many as 5,789 NGOs had lapsed after they failed to apply for renewal before the due date. The rest, who had applied for renewal, were refused as the MHA found their operations or accounts to be in violation of the FCRA, sources said.
According to the MHA, NGOs failing to apply before the due date can petition the ministry with cogent reasons within four months of the expiry of registration, following which their applications can be reconsidered.
Many NGOs do not apply for renewal for a variety of reasons, which include either completion of the project for which the FCRA registration had been taken or the NGO itself folding up.
On what basis is approval cancelled?
The government reserves the right to cancel the FCRA registration of any NGO if it finds it to be in violation of the Act.
Registration can be cancelled if an inquiry finds a false statement in the application; if the NGO is found to have violated any of the terms and conditions of the certificate or renewal; if it has not been engaged in any reasonable activity in its chosen field for the benefit of society for two consecutive years; or if it has become defunct.
It can also be cancelled if “in the opinion of the Central Government, it is necessary in the public interest to cancel the certificate”, the FCRA says. Registrations are also cancelled when an audit finds irregularities in the finances of an NGO in terms of misutilisation of foreign funds.
According to FCRA, no order of cancellation of certificate can be made unless the person or NGO concerned has been given a reasonable opportunity of being heard. Once the registration of an NGO is cancelled, it is not eligible for re-registration for three years. The ministry also has powers to suspend an NGO’s registration for 180 days pending inquiry, and can freeze its funds. All orders of the government can be challenged in the High Court.
Has the FCRA been used to target certain NGOs?
Until 2011, there were more than 40,000 NGOs registered under FCRA in India. That number now stands at 16,000.
Over the past few years, the government has faced allegations of targeting NGOs. Over the past seven years, the Narendra Modi government has cancelled the registration of more than 16,700 NGOs. Over 10,000 of these cancellations were carried out in 2015.
The previous UPA government had cracked down on NGOs following protests against the Kudankulam nuclear power project in Tamil Nadu. In 2012, the Manmohan Singh government cancelled the registration of almost 4,000 NGOs — up from just four the previous year.
It was under the UPA government that Greenpeace India first came under the scanner. Also, Amnesty International, which was first granted FCRA registration in 2000, was not allowed renewal of its registration by the UPA government.
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