A New Year message and letter seeking solidarity from Henri Tiphagne, renowned human rights activist.
Dear friends,
Happy New Year! Many of you have wished us, at People’s Watch, the Tiphagnes and we haven’t had the opportunity to respond until now. We are going through a tough time for a second consecutive time in the past 4 years. What started with the UPA II government is now continuing with the BJP. Those presently in governance are happy that the total number of NGOs with an active FCRA registration has reduced now to about 13,000 from what was 35,000 a few years ago. It needed the SC to assure this country that the right to dissent was an essential part of our right to speech and expression includes the right to criticize and dissent in 2015. If our democracy has to be vibrant, then participation is what it urgently requires. It has been established since the last general elections, in 2014, that even political parties cannot establish this participation in our democracy. Now that NGOs have also been done away with – initiated by the UPA II through the amendment to the FCRA 2010 and using it to silence NGOs since 2011 – 2012 and opposition parties in Parliament, as recent as last month, have continued to exhibit their incompetency in opposing policies of the government that threaten the state of our democracy.
Please consider this email a call to all those interested in preserving democracy, from peoples movements to civil society movements, from media to the judiciary, from political parties to national and state human rights organizations, to come together and oppose this attack on foreign funding for NGOs. It is no longer an issue of using foreign funds but a deeper issue of the right to association.
This year, we at People’s Watch, have decided to be more loud and assertive, not just to fight for human rights in general but to fight for the right to association, assembly and dissent. We would like to share the details of our case so far, our progress, the good news and the bad. We at CPSC, the board, staff, partners, our beneficiaries and to all our close friends and collaborators, feel that our fight is no longer ours but one that involves all of us. This is our patriotic expression to ensure that Art 51A of the Constitution is respected and protected.
Our work though at People’s Watch has remained the same – promoting the teaching of human rights education – with particular reference to teaching in schools in 10 states as of now through our Institution of Human Rights Education [IHRE] ; working at capacitating SHRIs and civil society on international standards that govern the functioning of National / State Human Rights Institutions through our All India Network of Individuals and NGOs working with National and State Human Rights Institutions [AiNNI] ; protection and capacitating of human rights defenders’ all over the country through Human Rights Defenders’ Alert – India [ HRDA] and human rights monitoring. Intervention, campaigning and rehabilitation leading access to justice in Tamilnadu. Is this not what NGOs are supposed to do in the field of human rights in the country ?
There have been many events that took place between 15th October .Let me do it in parts then.
1. Recalling the past actions by the UPA Government from February 2012 – February 2016:
Three FCRA suspensions in the year 2012 and 2013 . This was challenged by CPSC [ People’s Watch] in the Delhi High Court and we received several orders in our favor. See all of them here https://goo.gl/bHdUVJ. The final order in this case was made on 02.02.2016. The same can be seen at : https://goo.gl/81VQyB
2. Non response of the Ministry of Home Affairs of the Govt of India to our application for re – registration of our FCRA & consequent WP filed and orders obtaine :
CPSC had made our application f0r re-registration in the month of April 2015 and also made our payment of Rs 500 as the prescribed fees. The Government then changed this application to be made on line and it was made in March 2016. The last date for response from the MHA was 31st October, 2016. Since there was no response we addressed a letter to the MHA and since there was as always no response we filed a writ petition in W.P. No 10191 of 2016 before the Delhi High Court. The copy of the WP filed is to be seen here : https://goo.gl/
3. The order of the Delhi High Court in WP No 10191/2016 & C.M. No 40253 / 2016 dated 26.10.2016 after the MHA assured the Court that orders would be passed before 31st October, 2016 is to be seen at: https://goo.gl/TXYprs
4. Response of the MHA to our application for re-registration of FCRA after the Delhi HC order dated 26.10.2016:
The MHA responded to our FCRA re-registration application after giving an undertaking in court, on the 29th October as follows : “On the basis of a field agency report, the competent authority has decided to refuse your application for renewal”.
5. Challenging this order of the MHA by CPSC in the Delhi High Court:
CPSC responded to this refusal of the MHA to register CPSC under FCRA with another writ petition in W.P. No 10257 of 2016 before the Delhi High Court . The copy of the W.P. can be seen here : https://goo.gl/ehpfw9 The two orders that have so far been passed on 7th November can be seen here as : https://goo.gl/yRFVsW The order of the Court dated 18th November, 2016 can be seen here as : https://goo.gl/REIhg9 The case before the Delhi HC is now posted for the next hearing on 10th January, 2016. What is most important is that during the hearing of the case on 18th November, the counsel for the MHA handed over in a sealed cover the ‘reasons’ for the refusal of FCRA registration to CPSC. The judge read the 4 or 5 pages of materials handed over to him, his face changed as he read what was handed over to him and finally he handed back to the Counsel for MHA in the same cover what was handed over to him containing ‘ reasons ‘ for the refusal of the MHA. !!
6. The MHA’s order dated 29.10.2016 has also been challenged before the NHRC in Delhi: Mr. Mathews Philips, one of the NGO Core Group Members of the NHRC and a National Convenor of Human Rights Defenders’ Alert- India [ HRDA] challenged this before the NHRC. The petition filed before the NHRC can be found at : https://goo.gl/eVvCxV
7. The MHA’s order dated 29.10.2016 has also been challenged before the NHRC in Delhi by the 7th Asian Regional Human Rights Forum that was meeting in Colombo on 14th November: The 7th Asian Regional Human Rights Forum that was meeting in Colombo on 14th November sent the following petition to the NHRC as seen here: https://goo.gl/fjed1i
The order of the NHRC dated 16th November, 2016 requires to be reproduced here as follows :
To
THE HOME SECRETARY, MINISTRY OF HOME
AFFAIRS, GOVT. OF INDIA, NORTH BLOCK, NEW
DELHIWHEREAS the complaint/intimation dated 14/11/2016 received from E-MAIL SENT BY 7TH ASIAN HRDS FORUM COLOMBO SRILANKA in respect of CENTRE FOR PROMOTION OF SOCIAL CONCERNS, NGO ( CPSC) was placed before the Commission on 16/11/2016 .
AND WHEREAS upon perusing the complaint the Commission has passed the following order.
The 7th Human Rights Defender Forum Colombo, Sri Lanka has informed the Commission to intervene in the Foreign Contribution Regulation Act (FCRA) license non-renewal of Centre for Promotion of Social Concerns (CPSC). Such systematic attack on rights of the Human Rights Defenders and on fundamental rights of the association and assembly as
enshrined in the Article 19 of the Constitution of India has also been brought to notice of the Commission.UN Special Rapporteur on Freedom of Association and Assembly in his local analysis of FCRA 2010 has submitted a report of the Government of India in 2016 arguing that FCRA in not conformity with international law, principles and standards as access to resources including the foreign funding is a fundamental part of the right to freedom of association under the international laws, standards and principles. Moreover, limitations placed on
1. access to foreign funding will have to pass the litmus tests of the following;
i) Prescribed by law
ii) Imposed solely to protect national security, public safety, public order, public health or morals, or the rights and freedoms of others.
iii) Necessary in a democratic society such as rights and freedoms of others.
Prima-facie it appears FCRA license non-renewal is neither legal nor objective and thereby impinging on the rights of the human rights defenders both in access to funding including foreign funding.
The Commission takes suo-motu cognizance of the present case and directs Secretary
(Home) to inform within a period of six weeks the following :-
a) Number of NGOs of Human Rights Defenders who have not been allowed renewal of the license and the amount received by them from foreign funding during last three years and the reason for non-renewal.
b) To point out in case of Centre for Promotion of Social Concerns (more publically known through its programme namely People’s Watch) how the litmus test laid down by the UN Special Rapporteur is applied in the adjudication by the Central Government.
c) How the generic aspect of access to foreign funding and continuance of the same is not the right to form association and is not against international law, standards and principles.
After perusing submission of Secretary (Home), Government of India the Commission may decide to hear the oral presentation, if necessary, about the present allegation of the draconian approach and the correctives the Government of India is contemplating.
The Commission directs the Government u/s 12(d) of the Protection of Human Rights Act, 1993, to furnish the above information to help the Commission in taking up the hearing of the matter and to arrive at whether the review of the law can be recommended.
NOW THEREFORE TAKE NOTICE that you are required to submit the requisite information/Report within 4 weeks from the date of receipt of this notice.
2. TAKE FURTHER NOTICE that in default the Commission may proceed to take such action as it deems proper.
Given under my hand and seal of the Commission, this the day of 16
8. The historic 4th Order of FCRA suspension of the MHA against CPSC dated 9th December, 2016: The MHA has after both these actions were initiated by and on behalf of CPSC before the Delhi HC and the NHRC passed the following order of FCRA suspension. https://goo.gl/rz3dRX It has also issued the same questionnaire that is normally sent to NGOs by the MHA. CPSC was already sent this in the year 2012 and the same details were updated in the year 2014 and a fresh questionnaire issued now with the same questions asking for details from the inception of the organization. The same can be seen at : https://goo.gl/0RyFPn
May we all wish you a very Happy, challenging and successful New Year 2017. These wishes come from all our colleagues in People’s Watch who have been and their families who are paying the cost for this attack on CPSC. We shall rely on you for your continued support and solidarity.
Warm and affectionate regards,
Henri Tiphagne
People’s Watch