The Foreign Contribution (Regulation) Amendment Bill 2020, which was approved by Rajya Sabha on Wednesday, must be understood in a political context. The message is loud and clear: a single narrative is being crafted in India, and any challenge to power is viewed with suspicion and crushed with brute force. Civil society, which believes that one of its primary roles is to hold power to account and take non-partisan political action on behalf of the marginalized and the underprivileged, must align itself. Civil society can only exist if it is willing to perform service delivery functions, or it should perish.
The legislation, which establishes the conditions under which civil society organizations can receive funds from abroad, was approved by the Lok Sabha on Monday. It will have far-reaching consequences in the fields of education, health, people’s livelihoods, gender justice, and indeed democracy in India.
Depending on one’s point of view, the bill could qualify as a draconian amendment to a deeply repressive law or, in its most charitable assessment, as a sloppy piece of legislation that has not done even a basic analysis of the workings of the camp. . who wants to rule. While acknowledging the enormous incompetence of our existing systems of governance and regulations, the amended legislation has not thought through the consequences of these fundamental changes on various stakeholders.
Introduced by stealth
Surprisingly, the bill was introduced almost silently. The draft bill was not in the public domain until it was presented at the Lok Sabha on September 20. There were no pre-legislative public consultations or consultations with interested parties. At a time when the norm has been to put bills into the public domain for comment along with robust stakeholder consultation, this is rare.
This gives credence to the perception that this bill was driven by a political narrow-mindedness without a deliberative process or a vision consistent with the normative framework of our Constitution. The bill ignores the fact that India operates with a developmental deficit of basic human needs for food, education, health, housing, livelihoods and human dignity.
The aim of the bill was to regulate non-governmental organizations by making them accountable and transparent, Minister of State for Home Nityanand Rai told Parliament. Another stated objective was to regulate religious conversions supported with foreign funds. The third was to broaden the definition of the category of “government servant” to include “public servants” among those who cannot receive funds from abroad.
Even a cursory reading of the amendments will clearly show that the changes will not address the first two objectives in any way. Instead, new bureaucratic hurdles have been created that are unrelated to these goals. The third is clearly the result of a specific case (related to the Lawyers Collective) and appears to be a vindictive response that is not based on broader questions.
In any case, even if it was an objective (although questionable), it does not justify wide-ranging amendments. That could have been achieved through a much narrower mandate of legislation.
A moral obligation
Since civil society organizations seek the accountability of others, it is a moral obligation for them to be substantively accountable and transparent and to maintain the highest standards. While this is the stated commitment, it is also important to say that the NGO sector is already one of the most regulated. Organizations already have to submit at least four substantive reports to authorities.
They must comply with income tax laws and file their reports regularly. The second relates to his reports to the FCRA division of the Ministry of the Interior. The third is for the Charity Commissioner / Business Registrar. The fourth is for the donor. This is in addition to all other laws in the country that are applicable to the sector, such as the Provident Fund Law and tip reporting requirements.
In addition to this, the current Foreign Contribution (Regulation) Law requires that the FCRA division of the Ministry of the Interior must be informed about even smaller details, such as a change in bank account or change of address or change of even a single board member in a couple of weeks.
In addition, each quarter on the FCRA website, each FCRA organization is required to report its FCRA income along with details of the donor and the project for which the money has been sanctioned. In a country where the prevailing mood is to cut red tape and over-regulation in various sectors, it is curious to describe the levels of regulation discussed above as inadequate.
More redtape
It cannot be denied that there are black sheep in the sector (as there are in any other sector). But sincere adherence to the existing framework could easily eliminate them. Importantly, none of the proposed amendments will actually increase accountability and transparency. Instead, they will burden NGOs with new bureaucratic tasks and open the floodgates for arbitrary and vindictive actions by the authorities.
The discussion about conversions appears like a bolt from nowhere in the context of the proposed amendments. A careful reading of all the arguments in favor of this objective fails to establish that the amendments will do so. It is clearly a red herring and a tool to galvanize political support from the Hindutava base of the government.
It is important to stress that it is a myth that foreign money sources are primarily church-based. The vast majority of donors are philanthropic or government agencies that have no association with the church. Similarly, the extraordinary majority of organizations on the receiving end have nothing to do with religion. Instead, they focus on development issues such as eradicating poverty, creating livelihood options for the poorest of the poor, or working for gender justice.
Now that the bill has been passed, it is important to examine the key amendments and their implications to understand why VANI, the Voluntary Action Network of India, calls this bill a “death blow” to the sector. Let’s pick out the five major changes proposed.
A devastating blow
First, an FCRA grant cannot be re-awarded to other organizations, even if they are authorized by the FCRA. This is a devastating blow to the functioning of civil society. At the heart of the reason why NGOs make these types of reimbursements is the idea of collaborative functioning to ensure the pooling of diverse competencies to tackle difficult social problems. It also recognizes the reality that most NGOs in India are quite small and focused on their work with communities and do not have the skills to write proposals and link with donors. At one stroke, this whole model of helping and supporting millions of poor and ordinary citizens will be compromised.
We must be mindful of the fact that even earlier, FCRA money could be re-awarded only to organizations with FCRA approvals. When they have already been examined by the FCRA division, what was the need to stop this mode of operation? Indeed, work on the ground will suffer and small organizations will be elbowed out by large organizations.
Second, administrative expenses for organizations receiving FCRA funds must be capped at 20%. This is a case of total legislative overreach. If the donor agrees to a budget that could support higher administrative costs, why should the government object? It is a fundamental principle of law that is being subverted by giving the state unbridled power to enter the space of a contract between two entities.
Deeper philosophical questions aside, it’s also a disaster operationally. This must be understood in the context of how civil society organizations function. This 20% might be feasible in a service delivery organization where the entity works with reasonably large budgets and direct implementation. However, if the NGO performs other roles such as research, training, or advocacy, then 20% would be a ridiculously low number. In effect, this would mean that the government will only allow service delivery organizations and will not allow NGOs that play many other critical roles in society.
This should also be read with the fact that often higher administrative expenses from foreign funds play a very important role in cross-subsidizing other large government or Corporate Social Responsibility projects. Most government projects or CSR projects limit administrative overhead to 5% -6%. This is not a viable figure, but given the importance of these projects, NGOs often negotiate higher administrative costs with FCRA projects to provide a cross-subsidy.
Third, one of the strangest propositions of the bill is the need for all FCRA organizations to have their FCRA bank account at a Delhi branch of the State Bank of India. If one overlooks the tragic level of centralization that is being proposed and the deep suspicion of the state of even its own banking system (including public banks), then it appears as a black comedy in Internet times and pushes digital India.
Fourth, the need for all key officials to provide their Aadhaar cards. This insistence even after the Supreme Court ruling on Aadhaar is disappointing. Any credible civil society group would be willing to share their details, including individual details. However, why is Aadhaar essential? Why couldn’t a copy of a passport, PAN, or similar document fulfill the same transparency and accountability function?
Finally, the powers of action granted to the government by increasing the number of days for investigation or for the seizure of property and other provisions will only make an already draconian law more draconian in practice. Even today, there are enough cases where the government has not adhered to six months as the time frame to complete its investigation and this amendment would now further open the floodgates for retaliatory, disproportionate and arbitrary actions against challenging voices. to the government.
Amitabh Behar is a civil society leader working on issues of accountability for governance and citizen participation. He is currently the CEO of Oxfam India. The views are personal.
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