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Attack on Civil Society in India

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The attack on civil society in India refers to the concerted actions of the Indian State against non-government organisations, which it refers to as a new frontier of war..[1].

Attack on Civil Society[edit]

Reasons[edit]

Prime Minister Narendra Modi claimed that he is a victim of a conspiracy by Non-Governmental Organisations (NGOs) to “finish and defame” him, remove his government, and embarrass him[2]. In a rally addressing Odisha farmers, he claimed that he is “being attacked” by NGOs and that they were upset having been asked to provide an account of the foreign funds spent in India[3]. He said the NGOs were out to “finish” him but that he had been “elected to cure the country of this malaise” and that he was doing this[4].

The Intelligence Bureau (IB), under the Ministry of Home Affairs, published a report alleging that some NGOs are active against the economic, social and developmental interests of India[5]. The report titled ‘Impact of NGOs on Development’ claimed that NGOs, including Greenpeace, would have a negative impact of two to three per cent on the annual GDP growth rate of India[6]. This report was shared with, inter alia, the Prime Minister’s Office, the Home Minister, the National Security Advisor and the Finance Minister[7]. It identified seven projects including nuclear and coal-powered power plants, mines, and other industrial projects that were stalled due to NGO-created agitations[6].

Method[edit]

The repression of civil society and NGOs primarily occurred through use of the Foreign Contribution (Regulation) Act, and allied Acts such as the Prevention of Money Laundering Act and the Income Tax Act. The FCRA Act was first enacted in 1976 and replaced by a more stringent version in 2010[8]. The objective of the Act is to prohibit foreign funding to political parties and to regulate the spending of foreign funds by NGOs in India by adding requirements for funding and limiting the expenditure of such organisations. The FCRA prohibited NGOs from organising and participating in 'bandhs', 'dharnas' and other forms of political action. However, the Supreme Court of India read down such provisions of the FCRA and allied rules and permitted demonstrations and activism on social issues. In a series of amendments to the Act and related laws in 2010, and 2020 by the Narendra Modi-led Government, the following changes were made to restrict further the functioning of NGOs in India:

  1. NGOs were prohibited from sub-granting their funds to other organisations – even FCRA-compliant organisations. This limited the functioning of smaller or grassroots NGOs which were previously reliant on funds and support from larger organisations for their operations[9].
  2. The limit on ‘administrative’ expenditure was reduced from fifty per cent to twenty per cent of funds received. These administrative expenses include salaries, research, travel reimbursements etc. This severely curtails expenditure on research, advocacy and collaborations with national and international research institutes and universities[10].
  3. All NGOs receiving foreign funds are now required to bank with the Sansad Marg (Parliament Street), New Delhi branch of the State Bank of India (SBI). However, new accounts cannot be activated without approval from the Ministry of Home Affairs and the SBI branch would be under direct supervision and control of the Ministry[11].
  4. The Ministry of Home Affairs was granted the power to suspend FCRA certification for further 180 days after initial suspension of 180 days thus increasing the suspension period two-fold.
  5. ‘Public Servants’ are no longer permitted to be involved in FCRA-compliant NGOs.
  6. All NGOs were mandated to re-register themselves under the Income Tax Act and such registrations are only valid for five years at a time. Since the charitable status of NGOs was left to the Government’s discretion, donations could be made taxable.

The Government has also allegedly deliberately attempted to tarnish the reputation of such civil society organisations and activists through smear campaigns. These smear campaigns usually take the form of selective information leaks regarding confidential, spreading false news and conducting a “media trial”[12].

In 2018, Amnesty India claimed that the Government leaked a confidential dossier on Amnesty India by the Enforcement Directorate based on its investigations, and that Amnesty were never given access to such documents and were denied access to such information by the agency[13].

Lawyers’ Collective made similar allegations regarding leaking of confidential information from audits and investigations by the Ministry of Home Affairs in an attempt to create “prejudice and hostility” against the organisation before any legal procedures were undertaken[14]. This is contrary to provisions of the FCRA which state that details of the inquiry and audit are to remain confidential.

Teesta Setalvad, an activist and founder of the Sabrang Trust, was a victim of a misinformation campaign undertaken by Sudarshan News in 2017[15]. Frontline Defenders claim that “the news article falsely accused Teesta Setalvad and her spouse of using money collected for the relief of riot victims for frivolous purposes and her own enjoyment” and that the article “brands Teesta Setalvad as someone who is dividing society, spreading hate against Hindus, and gaining economic benefits from her actions” while denying such an allegation.

Stance of Foreign Governments and Organisations[edit]

The United States Department of State noted that “The Government’s increased monitoring and regulation of some NGOs that received foreign funding drew criticism from civil society. In certain cases, the Government suspended foreign banking licenses or froze accounts of NGOs that allegedly received foreign funding without authorisation or that unlawfully mixed foreign and domestic funding”[16].

In 2016, UN Special Rapporteurs on human rights defenders, Michel Forst, on freedom of expression, David Kaye, and on freedom of association, Maina Kiai noted that “we are alarmed that FCRA provisions are being used more and more to silence organisations involved in advocating civil, political, economic, social, environmental or cultural priorities, which may differ from those backed by the Government” following the suspension of FCRA registration of Lawyers Collective[17].

UNSR on freedom of association, Maina Kiai also stated in an interview that “clearly there is evidence of a problem and reason to be concerned” and that “there are currently serious obstacles to the right to freedom of association that violate international law, and that these obstacles have increased in recent years” regarding India’s FCRA regulations[18].

In 2017, the United Nations Human Rights Council Universal Periodic Review of India criticised FCRA for its adverse human rights consequences[19]. Countries such as the United States of America, Germany, Australia, Norway, Ireland, South Korea, and the Czech Republic specifically targeted the erection of hurdles by the FCRA regulations on the functioning of human rights defenders, NGOs, and civil society. During the 2022 Universal Periodic Review, countries including Australia, the Holy See, Ireland, Slovakia, United States of America, Belgium, South Korea, Germany, and Estonia re-iterated the need to amend and properly apply provisions of the FCRA.

Following the amendments to the FCRA regulations in 2020, UN High Commissioner for Human Rights Michelle Bachelet expressed “regret at the tightening of space for human rights NGOs” through “the application of vaguely worded laws that constrain NGOs’ activities and restrict foreign funding”[20]. The International Commission of Jurists (ICJ) expressed that the “FCRA Amendment 2020 will undermine the work of Civil Society” and that “the legislation fails to comply with India’s international legal obligations and constitutional provisions to respect and protest the rights to freedom of association, expression and freedom of assembly”[21].

The US Commission on International Religious Freedom (USCIRF) recommended the US Government designate India as a ‘country of particular concern’. The findings of their report included the erection of “hurdles against the licensure and receipt of international funding by religious and charitable NGOs under the FCRA” by the Indian government. USCIRF claims that organisations that support marginalised religious communities or document violations of religious freedom have been “forced to shut down” due to the amendments to the FCRA. FCRA licenses of approximately 6,000 organisations were not renewed in 2021 including Oxfam India and Missionaries of Charity[22].

Notable Cases[edit]

Amnesty International India[edit]

In 2016, the Akhil Bharatiya Vidyarthi Parishad (ABVP), a right-wing student organisation affiliated to the Rashtriya Swayamsevak Sangh (RSS), filed sedition charges against Amnesty International India which were later closed by a Bengaluru Court in 2019[23]. The charges were based on allegations of ‘anti-India’ sloganeering at an event organised by Amnesty India. During the programme, Kashmiri families were to narrate their stories of strife in the Kashmir valley. After the scheduled time for the event had ended, police and organisers switched off their microphones and ABVP alleged that ‘Azadi’ slogans were raised which amounted to sedition. Amnesty was also vocal regarding allegations of multiple human rights abuses committed by the police and inflammatory speeches made by Modi’s political allies during communal riots in Delhi where dozens of Muslims died, regarding human rights abuses in the Kashmir valley including thousands of arbitrary detentions, and internet and media restrictions, and the discrimination, harassment and violence faced by women and girls in India[24]. In 2018, Amnesty offices were raided by the Enforcement Directorate (ED). Their bank accounts were subsequently frozen until the High Court ruled otherwise. The Central Bureau of Investigation (CBI) raided their offices in New Delhi and Bengaluru in late 2019 as part of an investigation into allegations of contraventions of provisions under FCRA and the Indian Penal Code[25][26]. Later, in 2020, Amnesty India claimed it was forced to suspend operations in India due to the Government freezing their bank accounts owing to alleged breaches of FCRA norms[27][28].

Lawyers' Collective[edit]

FCRA license of Lawyers’ Collective, an Indian NGO promoting human rights, was cancelled in 2016 for alleged contravention of FCRA regulations[29]. The allegations were on the back of a report prepared by the Ministry of Home Affairs which claimed that it had acted against public interest[30]. Indira Jaising, head of the organisation, claimed that the suspension of their licence was a “blatant attempt to victimise” the organisation and that the motivation behind the cancellation was because of the cases that Lawyers’ Collective and its trustees were involved in including Priya Pillai, Yakub Menon and Sanjiv Bhatt. However, the Bombay High Court passed an interim order to unfreeze Lawyers Collective bank accounts in 2017[31]. In May 2019, the Supreme Court of India issued a notice against the organisation and its co-founders Anand Grover and Indira Jaising for alleged misuse of foreign funding under the FCRA[32]. Subsequently, in June 2019, the CBI filed charges of false statements made in declaration, cheating, criminal breach of trust and criminal conspiracy under the Indian Penal Code, and other violations of the FCRA norms and Prevention of Corruption Act, 1988 against Lawyers Collective[33]. The CBI then raided their offices in New Delhi and Mumbai as well as the residences of Anand Grover and Indira Jaising[34].

Greenpeace India[edit]

In early 2015, Priya Pillai, a Greenpeace activist, was off-loaded from a flight to London by the Intelligence Bureau in Delhi. This was done to prevent her from speaking to British Members of Parliament about the situation at the Mahan Coal Mine Project where allegedly “a community of 50,000 people has been fighting this London-based company, Essar Energy, trying to save their forest home”[35][36].

Greenpeace India, functioning in India since 2001, was charged under FCRA with financial violations in 2015[37]. Under the allegations of illegal opening of bank accounts and mishandling of foreign donations, all of their bank accounts were frozen and their license was suspended[38]. Many employees, however, continued working without any salary as the funds ran out. A month later, the High Court opened two of their domestic accounts for operational costs but the foreign funds were not permitted to be used[39].

Further, in October 2018, the Enforcement Directorate (ED) froze their primary bank account over allegations of continuing to receive foreign funding despite the Government having cancelled their FCRA license. The ED also raided and searched their Bengaluru offices. The account frozen was the one through which salaries were paid[40].

Sabrang Trust[edit]

Teesta Setalvad is a civil rights activist who set up, along with others, Citizens of Justice and Peace, an NGO to litigate against the alleged complicity of then Chief Minister, Narendra Modi, and Government of Gujarat in the 2002 Gujarat Riots. The FCRA license of Sabrang Trust, an NGO run by Teesta Setalvad, was suspended and subsequently cancelled in 2016 for alleged breaches of the 50% threshold for administrative expenditure of foreign contributions in 2010-11 and 2011-12[41]. Teesta Setalvad and her husband, Javed Anand, were also charged with embezzlement of Sabrang Trust funds in 2018 following a complaint by Raees Khan Pathan, a former aide of Setalvad. They were alleged to have used Sabrang Trust funds to pay witnesses to make false depositions in the post-Godhra riot cases of 2002[42]. They were granted anticipatory bail by the Gujarat High Court. In January 2023, their lawyer Kapil Sibal told the Supreme Court that the CBI and the Gujarat Police were yet to file a chargesheet against the couple[43].

Navsarjan Trust[edit]

Navsarjan Trust, an NGO working on fighting Dalit exploitation, untouchability, and manual scavenging, laid off all 80 employees following the cancellation of its FCRA license by the Ministry of Home Affairs[44] in late 2016. The MHA order stated, “Navsarjan Trust has come to adverse notice for its undesirable activities aimed to affect prejudicially harmony between religious, racial, social, linguistic, regional groups, castes or communities”. In January 2017, members of the Dalit community in Surendranagar, Gujarat staged a protest against the cancellation of the organisation’s FCRA license[45].

Attack on Journalists and Activists[edit]

Method[edit]

The primary methods of political oppression of activists and journalists are Section 124A of the Indian Penal Code (sedition), the Unlawful Activities (Prevention) Act (UAPA), the National Security Act and the Public Safety Act. These laws are used either independently or in combination to suppress the voices of activists and journalists.

Sedition Law[edit]

Section 124A of the Indian Penal Code was enacted in 1860 under the British Raj and deals with the punishment for sedition in India. Sedition is defined in India as “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment  which may extend to three years, to which fine may be added, or with fine.” However, the law is used to arrest peaceful critics of the Modi Government and criminalise dissent by targeting activists and journalists.

Under the Modi Government, sedition cases have increased by 28% and since 2014, more than 550 sedition cases have been filed involving over 8,000 people. However, these cases have a low conviction rate due to “misuse[d] by the executive powers” according to former Chief Justice of India N.V. Ramana. Between 2014 and 2019, only 6 convictions were made of 326 cases filed. Due to this misuse, the use of the sedition law has been halted by the Supreme Court as of May 2022[46].

Unlawful Activities (Prevention) Act[edit]

The Unlawful Activities (Prevention) Act or UAPA is aimed at providing the state with powers to deal with activities directed against the sovereignty and integrity of India. It is also known as the Anti-Terror law. In 2019, the Union Government under Narendra Modi passed an amendment which allows the Government to designate any individual as a terrorist and prosecute them under UAPA without any formal judicial process.

Like the sedition laws, UAPA is often misused to arrest dissenters and critics of the Modi Government and has a similarly low conviction rate of 2%. More than 5,000 cases have been filed under UAPA between 2016 and 2020 naming over 24,000 people. Only approximately 200 have been convicted and over 97% of accused remain in prison awaiting trial. Between 2014 and 2020, over 10,000 people have been arrested under UAPA.

Stance of Foreign Governments and Organisations[edit]

In May 2020, a group of United Nations Special Rapporteurs wrote to the Government of India about UAPA expressing “serious concerns regarding the designation of individuals as “terrorists” in the context of ongoing discrimination directed at religious and other minorities, human rights defenders and political dissidents, against whom the law has been used”. The signatories included the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; the Working Group on Arbitrary Detention; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; the Special Rapporteur on the situation of Human Rights Defenders; Special rapporteur on independence of judges and lawyers; Special Rapporteur on minority issues; Special Rapporteur on right to privacy and Special Rapporteur on freedom of religion or. The letter further encourages a review of the law to ensure compliance with international human rights obligations[47][48].

Further, in December 2021, UN experts urged India to stop targeting Kashmiri human rights defended Khurram Parvez. These UN experts included Luciano Hazan (Chair-Rapporteur), members of the Working Group on Enforced or Involuntary Disappearances, Mary Lawlor (Special Rapporteur on the situation of human rights defenders), Fionnuala Ní Aoláin (Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while counter-terrorism) and Morris Tidvall-Binz (Special Rapporteur on extrajudicial, summary or arbitrary executions). They also regretted that “the Government continues to use UAPA as a means of coercion to restrict civil society’s, the media’s and human rights defenders’ fundamental freedoms”[49].

United Nations Special Rapporteur on the situation of human rights defenders, Mary Lawlor, further added in October 2022 that the Indian Government was trying to “criminalise human rights defenders” through the usage of UAPA at a virtual meet held to express support for anti-CAA protestors booked under the law[50].

In India’s Universal Periodic Review undertaken by the United Nations Human Rights Council, five countries (Belgium, Estonia, Canada, Switzerland, and the United States of America) called for ensuring legislation such as UAPA is compliant with India’s international obligations under human rights law. The United States of America asked India to “reduce the broad application of the Unlawful Activities Prevention Act and similar laws against human rights activists, journalists, and religious minorities.” Czechia recommended India “repeal the crimes of sedition and criminal defamation in the Indian Penal Code to be in line with international standards on freedom of expression.”[51]

Notable Arrests[edit]

Bhima Koregaon Case[edit]

Between 2018 and 2020, multiple people were charged under sections of the Unlawful Activities (Prevention) Act for allegedly causing the violence that disrupted annual celebrations at the Bhima Koregaon memorial, supporting naxal activities and even plotting the assassination of Narendra Modi. The many accused include Rona Wilson (social activist and core committee member of the Committee for Release of Political Prisoners), Shoma Sen (university professor and head of the English literature department at Nagpur University), Mahesh Raut (activist and former Prime Minister Rural Development Fellow), Surendra Gadling (lawyer), Varavara Rao (activist and poet), Sudha Bharadwaj (civil rights activist and trade unionist), Vernon Gonsalves (academician, activist and trade unionist), Gautam Navlakha (journalist and human rights activist), Anand Teltubde (scholar, writer and civil rights activist), Stan Swamy (tribal rights activist and Jesuit priest), and Sudhir Dhawale (writer and Dalit rights activist)[52].

Siddique Kappan[edit]

Siddique Kappan, a Muslim journalist, was arrested in October 2020 en route Hathras in Uttar Pradesh where a 19-year-old Dalit woman had been gang-raped by four men belonging to the Thakur community. After having initially been accused of intending to start a caste-based riot and creating communal disharmony, he was charged with sedition and under provisions of UAPA later for alleged links with banned “terrorist” organisation Popular Front of India (PFI). He was only granted bail almost two years later in September 2022[53].

Asif Sultan[edit]

Asif Sultan, a Kashmiri journalist, has been jailed since August 2018. Although he was granted bail in April 2022, he was re-arrested under the Public Safety Act[54]. Prior to his arrest, he was reporting on the civil unrest in Kashmir. He also interviewed alleged members of militant groups as part of his journalism. He is accused of allegedly harbouring known pro-freedom fighters in Kashmir which he denies[55][56].

Akhil Gogoi[edit]

Akhil Gogoi is an Assam-based Right to Information (RTI) and anti-corruption activist. In 2019, he was placed under preventive arrest before being charged with, inter alia, sedition and UAPA by the National Investigation Agency for protesting the amendments to the Citizenship Act. He also allegedly had been working in close connection with Maoists which he dismisses[57]

Thirumurugan Gandhi[edit]

The leader of the May 17 Movement, Thirumurugan Gandhi, was arrested in May 2018 on charges of sedition[58]. He was campaigning against the police firing in Thoothukudi over the Sterlite plant protests and against the 8-lane Chennai Salem Green Corridor project. Before this arrest, he addressed the United Nations Human Rights Council in Geneva about the protests against the Sterlite plans where 13 people lost their lives in police firing.

Masrat Zahra[edit]

Masrat Zahra is a photojournalist from Kashmir who was arrested under UAPA for allegedly “uploading photographs which can provoke the public to disturb law and order”. However, Zahra denies this claim and stated that she was “just uploading my professional work, that I have covered since years and witnesses in Kashmir”[59]

Student Arrests in Anti-CAA Protests[edit]

In a case related to communal violence in North East Delhi in 2020 over the amendments to the Citizenship Act, two Jamia Milia Islamia University students (Meeran Haider and Safoora Zargar) and a former Jawaharlal Nehru University student (Umar Khalid) were charged under UAPA[60]. Delhi Police alleged that Umar Khalid was a “key conspirator” in the protests[61]. Another student activist protesting the Citizenship Amendment Act was charged in multiple states under UAPA, sedition and other laws in the Indian Penal Code for allegedly delivering inflammatory speeches.

Kamran Yousuf[edit]

Kamran Yousof, a multimedia journalist based in Kashmir, was booked under UAPA in 2017 and was later acquitted of all charges in March 2022 by the Delhi court due to insufficient evidence. He was arrested related to a case of terror and terror funding in Jammu and Kashmir and accused of being a “stone-pelter” and “conspiring to wage war against the Government of India” by carrying out “terrorist and secessionist activities”.

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