Monday, July 7, 2014

E A S Sarma - The Intelligence Bureau and Its Not Very Intelligent Report on NGOs

The reports of the Intelligence Bureau should facilitate, not hinder, people-oriented development; and strengthen, not erode, the democratic processes. For this to be possible, the report on any given subject should be well-researched, accurate and comprehensive. Then and only then can an intelligence report help the government and serve the public interest. The now-infamous IB report on non-governmental organisations fails to meet these criteria. The treatment of the Vedanta project in Odisha is an example of the one-sided treatment in the report.
E A S Sarma (eassarma@gmail.com) is a former Union Secretary (Power)
http://www.epw.in/commentary/intelligence-bureau-and-its-not-very-intelligent-report-ngos.html
The reports of the Intelligence Bureau should facilitate, not hinder, people-oriented development; and strengthen, not erode, the democratic processes. For this to be possible, the report on any given subject should be well-researched, accurate and comprehensive. Then and only then can an intelligence report help the government and serve the public interest. The now-infamous IB report on non-governmental organisations fails to meet these criteria. The treatment of the Vedanta project in Odisha is an example of the one-sided treatment in the report.
The Intelligence Bureau’s (IB) document criticising foreign-funded non-governmental organisations (NGOs), now available in the public domain,1 has provoked all-round protests from civil society. In a way, this controversy epitomises the recurring conflict between security considerations and civil liberties in democracies all over the world.
In his 2007 article (Jervis 2007), the well-known political scientist, Robert Jervis, summed up this dilemma by saying,Intelligence and intelligence services are simultaneously necessary for democracy and a threat to it”. To balance security considerations with the imperatives of civil liberties is a formidable challenge, even in well-evolved democracies.
The IB is undoubtedly a premier intelligence agency, perhaps the world’s oldest. Its roots are colonial, as is the case with many institutions in India. All such institutions view the rulers with awe and treat civil society as an adversary. IB’s forerunner was the then British Indian Army’s Intelligence Department set up in 1885 to gather intelligence on external threats against the British rule in India. In 1909, its successor, the Indian Political Intelligence (IPI) Office was established to keep a tab on Indian freedom fighters. It was recast in 1947 through an executive order, not a statute, as the Central Intelligence Bureau.2
In the past, the IB’s painstaking studies of emerging threat perceptions have significantly promoted national security. At the same time, during the last six decades of the IB’s existence, there have been complaints that the ruling political executive at any given point of time relied heavily on the organisation to keep a tab on its political adversaries, a fact that should cause serious concern. On occasions, the agency’s reports are known to have highlighted what is palatable to the ruling party and under-played what is not so palatable. Incomplete and inaccurate reporting could lead to biased decisions.
The IB’s activities have remained insulated from public scrutiny. Instead of confining itself to gathering strictly security-related, factual information and reporting objectively to the government, the IB often ventured into areas of policy and ideology, alien to it. As in the case of most other wings of the government, attractive post-retirement assignments, including gubernatorial appointments, to those that headed the agency, eroded its functional autonomy. No wonder that some of these aspects have since come under judicial scrutiny.3
What Is an NGO?
Coming to the role of the civil society entities, the term “NGO” in itself could mean a dedicated individual working selflessly among the people without any external support. It may be a group of like-minded persons working for a common cause, or a domestically funded body with its focus exclusively on a few well-defined social concerns, or a foreign-funded agency working in line with the donors’ objectives. Even a political party is strictly speaking an NGO.
NGOs receiving foreign donations are required to register under the Foreign Contributions (Regulation) Act (FCRA), 2010, submit periodic reports on their activities to the Ministry of Home Affairs (MHA) and remain accountable to the government. Both FCRA and the Representation of the People Act (RPA) explicitly prohibit political parties or their candidates from accepting foreign donations.
In our country, feudal traditions are still dominant and political corruption rampant. As a result, the vast majority of the people in the low-income groups have remained far too diffident to be able to voice their concerns to the government. But, for the critical and exemplary role played by some outstanding individuals and NGOs over the years, their concerns would never have come to the forefront of political discourse, and the government would not have found it necessary to make appropriate policy interventions. For example, it was at the instance of some NGOs that the Supreme Court had examined the ambit of Article 19 of the Constitution and provided a landmark interpretation, leading to the enactment of the Right to Information Act (RTIA) 2005, and the mandatory requirement that candidates contesting elections to public offices must disclose their antecedents upfront. Both these measures have far-reaching implications for governance.
However, over the years, the character of the NGOs has undergone a marked change globally, due to ever-increasing infusion of funds from large corporate entities and philanthropic agencies. The Center for Civil Society Studies at Johns Hopkins University suggests that even after excluding the funds provided for religious purposes, the so-called non-profit sector is now a $1.1 trillion per annum industry, employing well over 19 million fully paid workers, equivalent to the world’s eighth largest economy!4 Several Indian NGOs have benefited from this huge influx of funds. The donors’ objectives in such cases often came into conflict with the policies of the ruling political executive, either for valid or for not so valid reasons. Several corporates have tried to leverage their donations to choke competition and create favourable markets for themselves. Some have even tried to influence government policies. For example, if there are genuine NGOs promoting small, distributed renewable electricity generation units on the one side, there are an equal number of dubious corporate-funded NGOs on the other side, promoting large centralised renewable energy units to develop a market for the corporates. It would, however, be grossly unjust to say that all foreign-funded NGOs in India are engaged in objectionable activities.
Political Parties and Foreign Donations
The contagion of foreign-corporate-donations is not just confined to the NGOs alone. It has since spread to several political parties in India. In this connection, the Delhi High Court, in its order dated 28 June 2014, directed the government to take appropriate action.5 As already pointed out, unlike the NGOs duly registered under the FCRA, monitored by the MHA, political parties are prohibited from accepting foreign donations, both under FCRA and RPA. Foreign companies donate to political parties, not out of magnanimity, but in return, for huge quid pro quos, such as, getting the regulatory authorities to acquiesce to statutory and human rights violations committed by the corporates, the government allowing them to indiscriminately exploit scarce natural resources, and so on. Ironically, one is yet to come across an IB report on such illegalities and the havoc that the political donations have resulted in. Before pointing fingers at foreign-funded NGOs, political parties and intelligence agencies should therefore introspect on this. The intention here is not to discount the value of the intelligence reports but to help IB reorient its own role in line with the public interest.
Intelligence reports will subserve the public interest better if they alert the government to statutory violations, whether committed by the corporates, the NGOs or the political parties. Their reports should facilitate, not hinder, people-oriented development; and strengthen, not erode, the democratic processes. For this to be possible, the report on any given subject should be well-researched, accurate and comprehensive. Then and only then can an intelligence report help the government and serve the public interest. How far does the IB report meet these requirements?
Vedanta Project
In the very first paragraph of its report, the IB refers to the case of Vedanta’s bauxite mining project in Odisha as an example of how NGOs have “stalled development projects” by encouraging people’s agitations against them. One would then expect the IB to support such a strong assertion by highlighting all the facts that are relevant to the project and explaining the concerns of all its stakeholders so that the government can take a balanced view on the various issues. In fact, in Section 5 of the report (paragraphs 40-46), IB has tried to do exactly that. Are the facts and the analysis in Section 5 comprehensive enough to lead to a balanced appreciation of the Vedanta case? The facts stated in the report are summarised below.
In all, 15 Indian NGOs, supported by three foreign agencies, namely, Amnesty International, Action Aid and Survival International, have encouraged people’s resistance and successfully stalled the Vedanta project. Amnesty International received 1,25,000 pounds sterling from George Soros Open Society Foundation in 2009. The IB’s report cited the industrialist, Sajjan Jindal’s interview on 12 September 2013 to TheEconomic Times on inter-corporate rivalry and Jindal confirming that, the corporates routed Rs 50 crore annually to Indian NGOs to encourage agitations to their advantage. The report then tries to quantify the direct and the indirect fund flows from several corporates to NGOs through the other two foreign agencies, namely, Action Aid and Survival International. Finally, in Para 44 of the report, there is a fleeting reference to the main stakeholders, namely, “Dongria Kondh tribes of Nyamgiri Hills” in Rayagada and Kalahandi districts, where Vedanta’s bauxite mining is to be undertaken without any mention of the rights of the tribals and their travails. In particular, Section 5 is not explicit on any FCRA violation by the NGOs.
The information provided in Section 5 of the IB report is undoubtedly relevant, valuable and needs to be taken a serious note of. However, has Section 5 covered all the facts relevant to the Vedanta project?
Ignoring Tribal Rights
Vedanta’s mining project is located in the upper reaches of the Niyamgiri Hills, the habitat of the Dongaria and Kutia Kondhs (primitive tribal groups), lying within an area notified under the Fifth Schedule to the Constitution. The local tribals not only enjoy certain land and forest rights under the Constitution, but also the rights available under the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) and Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA). The state government and the Ministry of Environment and Forests (MoEF) initially ignored these rights and routinely granted clearances to Vedanta. When the government remained insensitive to the concerns of the tribals, the local NGOs took up their cause, leading to public protests against mining. Heeding the tribals’ protests and realising that the clearances so far given were deficient, the MoEF appointed a four-member expert committee, under the chairmanship of N C Saxena, a highly regarded former senior civil servant, to review the clearances. The Saxena Committee visited the area, interacted with the government and the tribals and concluded that mining in the area would not only violate the constitutional and customary rights of the tribals, but also the various environment and forest laws, as well as PESA and FRA.6
On 24 August 2011, the MoEF revoked clearances for the project. On a writ petition filed by the Orissa Mining Corporation against the MoEF’s order, the apex court considered the matter in detail and upheld the order. The Supreme Court, inter alia, observed,
the Saxena Committee’s evidence as reviewed by the FAC (Forest Advisory Committee) and read by me as well is compelling. The violations of the various legislations, especially the Forest (Conservation) Act, 1980, the Environment (Protection) Act, 1986, and the Scheduled Tribes and Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, appear to be too egregious to be glossed over.7
The apex court ordered the state government to seek the local tribal gram sabhas’ consent for the project, as required under PESA and FRA, before proceeding further. Accordingly, gram sabha meetings were held and the tribals, in one voice, resolved not to have the project anywhere near their habitat. It is surprising that the IB did not refer to any of these facts, especially the statutory violations and the landmark judgment pronounced by the apex court. The IB report is equally silent on the huge contributions made by Vedanta to the major political parties in India. A cursory look at the company’s annual reports,8 corroborated by the contribution reports9 submitted by political parties to the Election Commission of India (ECI) would have helped the IB make its report more meaningful, cogent and relevant.
Coming to Action Aid, cited in Section 5 of the report, a quick look at the NGO’s website10 would have revealed that a highly regarded former comptroller and auditor general of India is a sitting member of its international board. Apparently, the IB was unaware of this. While the IB report has emphasised the concerns against the NGOs as perceived by the corporates and others, the report would have been more balanced had the IB taken pains to point out the tribals’ point of view, the nexus between the corporates and the political parties, the quid pro quos that hurt the public interest and the judicial scrutiny that confirmed the statutory violations.
One could go on evaluating the present IB study with reference to POSCO and other cases mentioned in it. The picture that emerges is similar, one of deficient and incomplete analysis.
In the very first paragraph of its report, the IB summarily estimates the negative economic impact of the NGO activities to be 2%-3% of gross domestic product per year. In his insightful article, Surjit Bhalla (2014) refuted this questionable estimate on the basis of facts. He concluded by saying that “law-abiding NGOs, foreign or domestic, are an asset to any society because they enlarge the debate via research and advocacy”.
Lessons from the IB Report
From the controversy arising from the IB report, there are important lessons to learn, for the government, for the intelligence agencies, the NGOs and the political parties.
(1) The government should enlarge the democratic space for disadvantaged sections to enable them to articulate their concerns better and participate in decision-making.
(2) Instead of treating civil society as an adversary, the intelligence agencies should appreciate its genuine concerns and report them to the government. There is need for public accountability through parliamentary oversight of these agencies. World over, such reforms are taking place. The Justice and Security Act 2013 enacted by the United Kingdom to bring its intelligence agencies under parliamentary oversight is the most recent example of this.
(3) The leaked IB report has indicted several genuine individuals and NGOs whose contribution to the welfare of the people has been immense and whose credentials are impeccable. To tarnish their names thus is patently unjust. Such indictments tend to suppress voices of dissent which form the essence of any democracy. The IB should introspect on this and take corrective action immediately.
(4) Like other public institutions, NGOs too should subject themselves to greater public scrutiny and comply with the law of the land. In a country like ours, where millions of people belong to the low-income groups, NGOs that splurge funds and indulge in profligacy are bound to be questioned.
(5) Instead of driving the NGOs to rely on foreign funding, the government should perhaps institute an independently administered fund to support their efforts, without any strings attached. Genuine NGOs have a crucial role to play in a democracy.
(6) Political parties too should agree to come within the purview of the RTI Act and promote transparency in the way they function. By reducing their own dependence on external funding, they could set an example to the civil society to do likewise.
The sooner the urgency of such reforms is realised, the better it would be for the well-being of the country.
Notes
2 http://en.wikipedia.org/wiki/Intelligence_Bureau_(India)
3 “SC Notice to Centre on PIL to Bring IB, RAW under Statute” The Indian Express, 15 June 2014 available at:http://envfor.nic.in/sites/default/files/Saxena_Vedanta-1.pdf
4 The Centre for Civil Society Studies, Johns Hopkins University: Global Civil Society –Dimensions of the Non-profit Sector, 1999.
5 Delhi High Court order dated 28 February 2014 in WP (C) 131/2013.
References
Bhalla, Surjit (2014): “In Defence of Greenpeace”, Financial Express, 14 June 2014 available at:http://www.financialexpress.com/story-print/1260144
Robert Jervis (2007): “Intelligence, Civil-Intelligence Relations and Democracy” in Thomas C Bruneau and Steven C Bor (ed.), Reforming Intelligence: Obstacles to Democratic Control and Effectiveness (Austin: University of Texas Press).