Henry Tiphagne | SabrangIndia

Modi Govt’s curbs on NGOs funding must be collectively resisted: Henri Tiphagne

Mon, 09 Jan 2017 10:22:12 +0000

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
DELHI

WHEREAS 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

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It’s Not the 1st Time, NDA I too had Encroached on NHRC’s Autonomy

Thu, 10 Nov 2016 10:52:56 +0000

LK Advani, India’s deputy prime minister and home minister in 2004, overruled the objections of Chief Justice AS Anand and insisted on the appointment, to the NHRC of a just retired Director of CBI.

BJP leader Avinash Rai Khanna. Image credit: Alchetro

Political Appointment to NHRC Wrong in Principle: Justice Rajinder Sachar

Opposing the appointment of a senior office bearer of the Bharatiya Janata Party (BJP) as a member of the National Human Rights Commission (NHRC), several judges and human rights activists have roundly condemned the decision – first of its kind – to appoint a career politician to the national human rights body.

The decision of the NHRC to clear a politician to be on its panel is one more step of the ruling dispensation’s sinister intents to erode the autonomy of institutions. The Modi government, had tried once before to bring in a judge of the Supreme Court — Justice Sathasivam who had already accepted an executive post of Governor of Kerala. That controversial appointment had also been challenged. Before that NDA I, under Advani had brought in a CBI director seen favourable to the regime, in 2004.

A committee that appoints members to NHRC is chaired by prime minister and includes the home minister, leader of opposition from both the houses, speaker of Lok Sabha and deputy chairman of Rajya Sabha as its members. The committee headed by PM Modi had earlier anonymously cleared appointment of BJP VP Avinash Rai Khanna as a NHRC member despite his insufficient qualification and his participation in active politics. The Opposition Congress finds itself in an awkward position as its senior party leaders have been found to have agreed to the controversial appointment. Khanna has had only a short stint (13 months) with Punjab State Human Rights Commission, which he quit on being elected to Rajya Sabha.

However, Leader of Opposition in the Rajya Sabha Ghulam Nabi Azad yesterday claimed that he was not aware that Khanna was a BJP office-bearer. “We were unfortunately not kept in the loop… that he is an office-bearer of the BJP,” Azad told The Indian Express. Stating that he was misled, he said “We are given the bio-data, and he fell in the social (workers) category.”

Slamming Azad for his claim, Justice Rajinder Sachar, former chief justice of Delhi High Court and former member of United Nations Sub-Commission on the Promotion and Protection of Human rights told SabrangIndia, “How is that even possible? He himself is a leader of opposition in Rajya Sabha and Khanna is a former member of Rajya Sabha. How can he not be aware of Khanna’s affiliation with BJP? The Government is taking such a step and surprisingly even Congress is not opposing it? Their duplicity must be exposed.”

Further, Sachar called decision to appoint Khanna wrong “in principle” and also said that the People’s Union for Civil Liberties (PUCL) will be taking steps to cancel Khanna’s appointment.

Justice Hosbet Suresh also condemned the committee’ decision, calling it, “fundamentally wrong”. “I am unable to understand how the committee cleared appointment of a politician anonymously. This needs to be challenged in the court,” he said.

Although, he was skeptical if cancellation of his appointment would make any difference to the rights body, the NHRC, he felt it still should be opposed. “What purpose will it serve? NHRC is already pretty useless. This government, and also the previous governments have been doing very little to ensure effective functioning of NHRC,” opined Justice Suresh.

“The institution is very weak,” confirmed Henry Tiphagne, a renowned human rights activist and recipient of this year’s Amnesty International Human Rights Award 2016. “India used to be regarded as a leader with 160 human rights institutions functioning in the country. But, everyone knows that these have been systematically weakened,” he said.

Fearing a “bad trend” that this appointment can set off, he appealed to civil society to oppose this move. “This is just the beginning. Tomorrow, they’ll start appointing their staff members to the commission. This is a serious blow to the institution’s independence. Civil society should stand up against this,” said the founder of human rights organisation People’s Watch. “We’re waiting for the input from our advisors. After that, we’re going to approach the court,” added Tiphagne.

Ravi Nair, Executive Director, South Asian Human Rights Documentation Centre (SAHRDC) told SabrangIndia, “This is not new. Back in 2004, director of Central Investigation Bureau (CBI) P C Sharma was appointed to the commission, following, which I had resigned. This time, what’s new is BJP is trying to induct a crass political person to the Commission.”

He lambasted Azad as well for his ignorance and called his comment on the matter ‘preposterous’. “Are you sitting there simply ticking on papers put in front of you? While making statutory appointment to a human rights body, don’t you check a candidate’s background? Congress too needs to be told off,” said the ex-member of NHRC core group.

Around March 2004, the first government of the National Democratic Alliance (NDA-I) invited national and international criticism when it had appointed PC Sharma, just retired director of the Central Bureau of Investigation (CBI) as member to the NHRC. Sharma had held the post when the federal agency, CBI withdrew the conspiracy charge against them deputy prime minister and home minister, LK Advani in the Babri masjid demolition case.

The Caged Parrot Syndrome? Or a Quid Pro Quo ?

This proposal to appoint a senior policeman to a post on the national rights body had led to senior rights activist and academic, Ravi Nair, executive director of the South Asia Human Rights Documentation Centre (SAHRDC) to resign in protest from the NGO Core Committee of the NHRC.

Then chairperson of the NHRC, former CJP Justice AS Anand had protested against the proposal and even written a letter to the prime minister Vajpayee and the home minister. To no avail. The appointment went through and was challenged in the Supreme Court by the PUCL. On January 18, 2005, a two-member of the Supreme Court had a spilt verdict with Justice Sabherwal allowing it and Justice Dharmadhikari opposing it. On April 29, 2005, a three judge bench consisting of Justices Santosh hedge, BP Singh and SB Sinha dismissed the plea not to litter the rights body with a senior policeman, that too one who had won favours with a political dispensation.

Questioning the very motive of formation of the Commission (NHRC), Ravi Nair further claimed that it was formed only to be “used as a buffer against international criticism”. “It was dead on arrival. During the tenure of its first there chairmen, there were at least some efforts to ensure human rights accountability. But after that, it’s been a downfall. Ninety percent of its staff members are related to the Intelligence Bureau. How can you expect any credibility from them?” he claimed.

Expecting anything from NHRC is like expecting a cat to climb a glass mountain, jostled Nair.

Maja Daruwala, senior advisor, Commonwealth Human Rights Initiative called the appointment “a bad precedent”. “It might be okay to appoint an active politician in a strictly legal sense, but it’s indeed an abuse of public trust. Government must rethink its decision, in the interests of the NHRC as an institution independent and apart from the ruling regime of the moment.” she said.

Interestingly, when in opposition, BJP had opposed appointment of former Supreme Court judge Cyriac Joseph to NHRC citing his alleged closeness to "certain political and religious organisations". However, the objection by the then Leader of Opposition Arun Jailtley was rejected by the panel and the appointment was cleared.

This is not the first time that the Modi-led NDA II government at the centre, has tried to make a controversial appointment. Justice P. Sathasivam held the office of the CJI from July 2013 to April 2014. Shortly thereafter, the government offered him the position of Governor of Kerala. He accepted, setting off a chorus of criticism. One former CJI, when asked for his reaction, enigmatically and crisply commented that “standards differ”. Then, lawyers and retired judges had pointed out that the office of the CJI was being devalued. Its holder was part of a constitutional triumvirate of power along with the President and the Prime Minister, they argued, and therefore accepting Governorship meant going to an office not only several rungs lower, but more crucially one which was given entirely as patronage and largesse by the executive. The PUCL had strongly opposed this appointment.

It was also feared that once a precedent was set, and by no less than a CJI, it would not be long before judges on the verge of retirement would have the vision of a comfortable gubernatorial position hazing their eyes while deciding sensitive cases against the government. The proposed appointment had been challenged in the Supreme Court.

NDA’s Dubious Track Record

In 2004, under NDA I, Kuldip Nayar had written scathingly in the The Indian Express, March 23, 2004:

“..the vacancy arose in November 2003 when Virendra dayal, a member of the NHRC retired after two terms. It was kept vacant intentionally because Sharma was still in service. When he retired in February, he was posted against the vacancy. It was of little concern to the BJP that Sharma did not fulfill the qualifications laid down in the NHRC charter and that Justice Anand had opposed the proposal. Apparently, the BJP has no respect for institutions like NHRC. Even earlier, it had tried to nominate to the commission two other police officials, MB kaushal and DR Karthikeyan…….Soon after joining the NHRC, Sharma wanted to attend a meeting of Interpol at Geneva. Justice Anand refused to release the necessary funds for the trip. I believe the CBI, or some other government intelligence agency, footed the bill. ‘Shining’ BJP is setting a new precedent by allowing a NHRC member to be part of Interpol at the same time.”

What is the NHRC?

Image credit: My Republica

The National Human Rights Commission (NHRC) is the premier body that investigates abuses and violations of human rights in India. Set up in 1993, the NHRC has wide-ranging powers to investigate, recommend prosecutions, and award compensations for human rights violations. High-profile cases investigated by the Commission include encounter killings by the police and other acts of violence by the state. In 2002, the Commission under former Chief Justice J.S. Verma, was the first official body to visit Gujarat after the riots; it moved the Supreme Court to transfer cases outside the State to secure a fair trial.

The NHRC, set up under the Protection of Human Rights Act, 1993, consists of nine members. Four are ex-office appointments — serving Chairpersons of the National Commissions for Minorities, Scheduled Castes, Scheduled Tribes and Women. Two are persons who have done work in the area of human rights. And three are from the judiciary: a sitting or retired judge of the Supreme Court; a Chief Justice of a High Court; and, the most important of all, a former Chief Justice of India (CJI) who heads the Commission.

Crucial Need for Autonomy and Integrity

The PHR Act dictates that the chairperson needs to be a former CJI. This itself has been at the heart of many discussions within human rights circles and academia. Commonly, human rights violations are committed by, or with the connivance of, or allowed to be perpetrated by high-level political leaders, the police or other officers. The public needs to have unquestionable confidence that these cases will be investigated without a tinge of favour, by the most independent persons available. The Commission’s public face and guiding force is the Chairperson. Hence, the need for a head who’s autonomy is unquestionable. Unfortunately, despite its existence for a quarter of a century, the NHRC has not inspired the confidence on human rights abuse as it ought to have.

Also read: NHRC intervenes as BJP govt. hounds defenders of adivasis' rights in Bastar
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