Cancellation of the license of Sabrang Trust under the FCRA

Obstacles to freedom of association /

Harassment
India
July 6, 2016

The Observatory for the Protection of Human Rights Defenders, a partnership ofthe World Organisation Against Torture (OMCT) and FIDH, requests your urgentintervention in the following situation in India.

Brief description of the situation:

The Observatory has been informed by reliable sourcesabout the cancellation of the license of Sabrang Trust under the ForeignContributions (Regulations) Act of 2010 by the Ministry of Home Affairs ofIndia. Sabrang Trust, a non-governmental organisation headedby Ms. Teesta Setalvad, works topromote conflict resolution and support peace building. In particular, Ms.Setalvad and her organisation have been at the forefront of protests and legalinterventions on behalf of victims and their families against crimes committedagainst Muslims during the Gujarat riots of 2002 and have been sharply criticalof the then Gujarat State government led by Mr. Narendra Modi, now PrimeMinister of India.

According to the information received, on June 16, 2016, the Ministry ofHome Affairs announced on its website that the licence of Sabrang Trust hadbeen cancelled under the Foreign Contributions (Regulations) Act (FCRA) with “immediate effect”[1]. Accordingly, Sabrang Trust can no longer receive foreign funding.Sabrang Trust indicated that it would challenge the order.

The licence of Sabrang Trust had already been suspended on September 9,2015 for a period of 180 days (see background information).

The Observatory expresses its deepestconcern about the obstacles to freedom of association and access to fundingfaced by Sabrang Trust, which seem to be merely aimed atsanctioning the organisation's human rights activities, in particular its work for justice and truth with regard to the2002 Gujarat riots. Accordingly, the Observatory calls upon the Indianauthorities to immediately and unconditionally repeal the cancellation of Sabrang Trust’s FCRA registration, in order to allow this prominent organisation tocarry out its legitimate human rights work.

The Observatory further recalls that on May 31, 2016, the FCRA licence of the NGO LawyersCollective was suspended by the Ministry of Home Affairs[2].

In a statement released on June16, 2016, United Nations (UN) Special Rapporteurs on the situation of humanrights defenders, Mr. Michel Forst, on freedom of opinion and expression, Mr.David Kaye, and on the rights to freedom of peaceful assembly and ofassociation, Mr. Maina Kiai, called upon the Government of India to repeal theForeign Contributions (Regulation) Act and said that they “are alarmed thatFCRA provisions are being used more and more to silence organisationsadvocating civil, political, economic, social, environmental and culturalpriorities, which may differ from those backed by the Government”. According to the UN experts’ statement, FCRA is being “increasingly usedto obstruct civil society’s access to foreign funding, and fails to comply withinternational human rights norms and standards”. They encouraged theauthorities of India “to ensure a safe and enabling environment for humanrights defenders and civil society, which play a critical role in holding theGovernment to account and buttressing Indian democracy”.

In April 2016, the UN Special Rapporteuron the rights to freedom of peaceful assembly and of association published a legal analysis of the FCRA and stated that the statute is “not inconformity with international law, principles and standards”. The SpecialRapporteur further mentioned in the report that “[the FCRA] appears to give thegovernment broad discretionary powers that could be applied in an arbitrary andcapricious manner”. The Government of India has yet to respond to the SpecialRapporteur regarding his analysis.

Background information:

Judicial proceedings have been ongoingagainst Ms. Teesta Setalvad and her spouse since 2013, based on spuriouscharges of alleged embezzlement of funds intended for the construction of amemorial to the victims of the 2002 Gujarat riots. Ms. Teesta Setalvad had toseek anticipatory bail from the Supreme Court in relation to this case. Aninvestigation that began in January 2014 has resulted in continuous harassmentand systematic probes into the accounts of Sabrang Trust and groundless accusations of non-cooperation. On July14, 2015, Ms. Teesta Setalvad's house and office were raided by officers of theCentral Bureau of Investigation and on June 29, 2015, a travel ban was imposedon her[3]. Her application for anticipatory bail isstill pending before the Supreme Court of India. The next hearing in the case is scheduled for July 11, 2016.

On February 12, 2015, the Gujarat High Court denied anticipatory bail toMs. Teesta Setalvad and her husband, Mr. Javeed Anand. 40 minutes later,Gujarat police arrived at their residence in Mumbai. However, on the same daythe Supreme Court issued a stay on the High Court order, which prevented thecouple from being arrested.

On March 10, 2015, the Government of Gujarat’s Home department wrote tothe Ministry of Home Affairs, ordering the Ministry of Home Affairs to carryout an inspection of Sabrang Trust upon allegation of FCRA violations.

From April 9 to 11, 2015, afour-member FCRA Inspection Team headed by Shri Mahendra Kumar, DeputySecretary (MHA/GOI), inspected the accounts and related records of SabrangTrust in Mumbai. All original documents and photocopies as required by theInspection Team were submitted, along with printouts of books of accounts ofSabrang Trust’s FCRA account. Receipts for the same were duly acknowledged bythe Inspection Team.

Sabrang Trust subsequentlyreceived an official post-inspection communication from the FCRA department.The notice, signed by Under Secretary Shri Anand Joshi, who was not part of theInspection Team, and dated June 4, 2015, made several ”observations” concerningalleged violations of the FCRA, 2010 and the FCR Rules, 2011.

Through a detailed letterdated June 25, 2015, Sabrang Trust responded to each allegation,point-by-point, highlighting how, contrary to what was claimed in the “observations”,the Trust had not violated any provision of the FCR Act and Rules.

Sabrang Trust received an'Order' dated September 9, 2015, signed by Deputy Secretary Shri Mahendra Kumar(who had headed the Inspection Team in April 2015), suspending the FCRAregistration of Sabrang Trust for a period of 180 days.

In response, through adetailed letter dated October 5, 2015, addressed to the Deputy Secretary,Sabrang Trust challenged again the 'Order', denying once again having committedany FCRA violation. The Trust requested that it be given an opportunity for itsmembers to present the case in person before the FCRA authorities.

Subsequently, Sabrang Trustreceived a letter dated March 30, 2016 signed by Shri D.P. Tripathy, Directorof FCRA Monitoring Unit, asking Mr. Javeed Anand, Sabrang Trust's ChiefFunctionary, to appear before him on April 16, 2016 to present Sabrang Trust'scase. Accordingly, Mr. Javeed Anand and a lawyer appeared before the Directorof FCRA Monitoring Unit to further support Sabrang Trust's contention that ithad not violated any provision of the FCR Act and Rules. The meeting lastedless than 10 minutes.

Actions requested:

Please write to the authorities in India,urging them to:

i. Repeal immediately andunconditionally the cancellation of Sabrang Trust’s FCRA registration, as thiscancellation only seems aimed at sanctioning Sabrang Trust’s legitimate humanrights activities;

ii. Put an end to all acts ofharassment - including at the judicial level - against Sabrang Trust, Ms.Teesta Setalvad and Mr. Javeed Anand, as well as against all human rights defenders andorganisations in India so that they are able to carry out their work withouthindrances;

iii. Conform with the provisions of the UNDeclaration on Human Rights Defenders, adopted by the General Assembly of theUnited Nations on December 9, 1998, especially its Articles 1 and 12.2; and

iv. More generally, ensure in allcircumstances the respect for human rights and fundamental freedoms inaccordance with the Universal Declaration of Human Rights and withinternational and regional human rights instruments ratified by India.

Addresses:

• Mr. Shri Nanredra Damodardas Modi, PrimeMinister of India, Fax: + 91 11 2301 6857. E-mail: pmosb@pmo.nic.in / manmo@sansad.in

• Mr. Raj Nath Singh, Union Minister of HomeAffairs of India, Fax: +91 11 2309 2979. Email: dirfcra-mha@gov.in

• Justice T.S. Thakur,, Chief Justice of India, SupremeCourt, of India, Fax: +91 11 233 83792, Email: supremecourt@nic.in

• Justice Shri H.L. Dattu, Chairperson of the National Human RightsCommission of India, Fax +91 11 2465 1329. Email: covdnhrc@nic.in; ionhrc@nic.in

• Mr. SrinivasaKammath, Focal Point onHuman Rights Defenders, National Human Rights Commission, of India, Email: hrd-nhrc@nic.in

• H.E. Mr. Ajit Kumar, Ambassador,Permanent Mission of India to the United Nations in Geneva, Switzerland. Fax:+41 22 906 86 96, Email: mission.india@ties.itu.int

• Embassy of India in Brussels, Belgium,Fax: +32 2 6489638 / +32 2 6451869

Please also write to the diplomaticmission or embassy of India in your respective country.

[1]The order cancelling the FCRA registration of SabrangTrust says more than 50% of the foreign contributions obtained under the FCRAhas been spent on administrative expenses without prior permission of theCentral Government. In response to this alleged violation, Sabrang Trust had submitted a detailedworksheet along with copies of its annual returns to show that administrativeexpenses during the financial year 2010-2011 were 30% of the total, and duringthe financial year 2011-12 were 31.5% of the total. Apart from the blanketclaim that its administrative expenses during these two years were 64.23% and55.14% respectively, the Ministry of Home Affairs (MHA) did notexplain how they had arrived at these figures. The MHA’s response to thedetailed explanation submitted by Sabrang Trust was simply “found notsatisfactory”.

[2]See Observatory Urgent Appeal IND 002 / 0616 / OBS 046, June 8, 2016.

[3]See Women HumanRights Defenders International Coalition (WHRDIC) joint statement, August 3,2015.