Sunday, January 29, 2023

Supreme Court refuses relief to the NGOs, which lost FCRA registration due to expiry of date for filing of extension

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The Supreme Court on Tuesday declined to provide any relief to the NGOs, which lost registration after the Centre said that extension of licence was only given to those NGOs, which filed applications for the same.

Refusing to pass an interim order to protect the 6,000 NGOs, the court asked them to make a presentation before the Centre for the renewal, which would then take a decision as per the law.

A Bench of the Apex Court, comprising Justice A.M. Khanwilkar, Justice Dinesh Maheshwari and Justice CT Ravikumar was hearing a plea made by a US–based organisation, Global Peace Initiative, represented by senior advocate Sanjay Hegde, which challenged the expiry of the FCRA licences of nearly 6,000 NGOs. The organisation urged the court to let these NGOs continue with their licences until further orders.

Countering the plea, Solicitor General Tushar Mehta said the government had extended the licences of 11,594 NGOs, which applied within time. 

Mehta further questioned the locus standi of the petitioner, asking how an organisation based in Houston was concerned with the FCRA licences in India.

The Court said it does not want to interfere in the matter now and that the NGOs should first approach the government. If they were unhappy with the decisions, the matter could be heard in the Court.

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After the Ministry of Home Affairs (MHA) turned down its request for licence renewal on December 25, the MoC had joined around 6,000 entities, whose FCRA registration had ceased to exist. The MHA had said registration was earlier not renewed as “some adverse inputs” were noticed. 

The Court refused to intervene in the matter, though it allowed the petitioner to approach the authorities with a representation, which would be considered on its merits.

The court said the petition would be taken up after it had pronounced its judgement in the pending Noel Harper versus Union of India case on the validity of the amendments made to the FCRA in 2020.

The apex court had reserved its verdict on the question of validity of the amendments on November 9, last year. The government, through the Ministry of Home Affairs, had maintained that the NGOs had no fundamental right to receive “unbridled foreign contributions”.

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The petitioners had contended in court that the amendments were choking flow of foreign funds to NGOs engaged in philanthropic activities in India.

During the hearing, the court had questioned the role of the Home Ministry in regulating foreign funding of NGOs.

But the government had warned about how foreign funds could be used to finance activities detrimental to national security and interests.

Mehta had referred to intelligence inputs, which indicated that the money from abroad was used to feed activities meant to destabilise national peace and security. It was even going to the Naxals.

“There is an element of national security, integrity of the nation involved here… Every transaction is watched by the MHA, from the very beginning,”

-Solicitor General Tushar Mehta had explained the MHA’s involvement.

Mehta had justified that the amendments were introduced to “strengthen the mechanism, enhance transparency and accountability”. Prior to the amendments, he had claimed, only a miniscule portion of the foreign funds was actually used by the NGOs for their registered objectives.

The Solicitor General had said the amendments were introduced to prevent NGOs from acting as ‘middlemen’ between foreign contributors and local, unregistered NGOs.

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However, on March 2020, in a separate judgment, the court had already declared that the Centre cannot brand an organisation ‘political’ and deprive it of its right to receive foreign funds for using “legitimate forms of dissent” like bandh, hartal, “road roko” or “jail bharo” to aid a public cause.

“Support to public causes by by resorting to legitimate means of dissent like bandh, hartal, etc, cannot deprive an organisation of its legitimate right of receiving foreign contribution… Any organisation which supports the cause of a group of citizens agitating for their rights without a political goal or objective cannot be penalised by being declared as an organisation of a political nature,”

-a Bench of Justices L. Nageswara Rao and Deepak Gupta had observed in its 23-page judgment.
This judgment in 2020 was based on a petition filed by the Indian Social Action Forum (INSAF) challenging certain provisions of the Foreign Contribution Regulation Act (FCRA), 2010 and the Foreign Contribution (Regulation) Rules of 2011, both of which gave the Centre “unguided and uncanalised power” to brand organisations ‘political’ and shut down their access to foreign funds.

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