Sunday, May 10, 2015

Ashish Kothari - The Ministry for Hounding Activists

"Recently EAS Sarma, former Secretary to the Government of India and a petitioner in the above case, wrote to the Cabinet Secretary with these telling words: “I find that the MHA has shown unusual speed and alacrity in proceeding against NGOs under the FCRA but it has not apparently displayed the same enthusiasm and passion in proceeding against the political parties that have accepted illegal donations from foreign companies, violating the same FCRA.”

NB -The author has omitted mention of the vast funds going to Hindutva and 'Islamic' NGOs. I have added some observations below the article - DS

The recent government crackdown on Greenpeace in particular, and the activism sector in general, reeks of arbitrariness and illegitimacy, says Ashish Kothari in a scathing critique. The question is will the people give in to the state’s tactics?

Civil society organisations are gearing up for possibly one of the most important struggles of resistance since the Emergency in the mid-1970s. At stake are the democratic freedoms of speech, dissent and association, all guaranteed to us in one way or the other by the Constitution of India, and all threatened by a government that wants to brook no challenge to its agenda.

Ham-handed attempts by those in power to muzzle dissenting voices have been around for many years, especially by relatively intolerant state governments. Branding activists as ‘anti-national’, ‘Naxalite’ or ‘Maoist’ is a way to publicly discredit them, and several states have gone further in detaining, imprisoning, and charging them under various penal or armed forces or terrorism laws. A softer but often equally effective method has been to suspend permissions or special status under income tax or foreign funding laws.

A prominent case was the freezing of the foreign funding bank account of the Indian Social Action Forum (INSAF) in April 2013 by the Ministry of Home Affairs (MHA). INSAF is a platform for over 700 social action groups and activists and their accounts were frozen upon allegations that its activities were ‘prejudicial to the public interest’.

At that time civil society rallied around INSAF, with over 340 organisations and activists issuing a strongly worded letter that said: “We stand with INSAF in asserting the constitutional right of every citizen of India to participate in governance, which includes the right to question, challenge and oppose the policies of the state through peaceful, nonviolent and democratic means.” (The letter is reproduced in Economic and Political Weekly, 15 June 2013). INSAF moved the Delhi High Court, which struck down the MHA’s action on the grounds that no substantial reasons had been given to justify it.

In general, though, till now central government has not been so trigger-happy in the use (or rather, abuse) of such provisions. The present government, however, seems to be going much further out on a limb after civil society organisations. A series of actions in the last few months have alarmed the activist and voluntary sector in the country, and triggered increasing attempts at getting together to resist this attack.

The Greenpeace incident :  One of these, prominently in the news over the last few weeks, and personally known better to me, is the move by the Ministry of Home Affairs (MHA) to direct closure of all bank accounts of Greenpeace (GP) India. The closure came after the MHA issued a notice suspending GP India’s registration under the Foreign Contributions Registration Act (FCRA), alleging various violations of the law.

The FCRA suspension has been justified on a number of flimsy grounds, mostly procedural, each of which GP India should be able to defend. The notice even contains half-truths and outright lies, for instance that GP India sponsored Channel 4’s trip to Mahan Forests Ground Zero, for a campaign against destructive mining proposed by Essar which would have destroyed forests and the livelihoods of tens of thousands of people. It also alleges that the organisation sponsored the election campaign of Aam Aadmi Party candidate Pankaj Singh (who had resigned from GP India before he entered the fray).

Even if in one or two cases there may have been mistakes, these are easily verifiable as honest errors any organisation can make; for example, the omission of a figure in a hard copy of the audit returns, which is clearly a typographic mistake because the correct figure shows in the online submission, a fact the MHA conveniently hides.

Can the BJP (or any other party for that matter) show all its accounts to the public, and assure us that there has not been a single such lapse on its part? Why has the MHA not moved against political parties (both the BJP and Congress) that have taken funds from foreign organisations (specifically from the notorious Vedanta through its Indian subsidiaries), an allegation that was accepted as valid by the Delhi High Court in 2014?

On 28 March 2014, the court asked the Government of India to take action against both parties within six months. No action has been taken, of course. A BJP spokesperson’s subsequent response in a television programme was that the party has returned the money to the contributor, as if that exempts it from being prosecuted for violation!

Recently EAS Sarma, former Secretary to the Government of India and a petitioner in the above case, wrote to the Cabinet Secretary with these telling words: “I find that the MHA has shown unusual speed and alacrity in proceeding against NGOs under the FCRA but it has not apparently displayed the same enthusiasm and passion in proceeding against the political parties that have accepted illegal donations from foreign companies, violating the same FCRA.”

The real dynamics: No, the MHA action against Greenpeace India is not about legal violations, it is more related to the fact that GP India and other such groups are indeed hurting the “economic interests” of some parties, in this case the corporations that are close to the government. In the kind of projects that are opposed by movements and groups like GP India, the State believes that its interests are coterminous with the interests of India’s economic and political elite, including corporations.

Coal mining, thermal power stations, nuclear stations and so on, have been repeatedly shown to be dirty, dangerous, damaging to public health and not necessarily providing greater energy access to the poor. But they do mean enormous profits for a few. Alternative routes to energy security, such as decentralised renewable energy (GP India has itself shown a working model for a full village in Bihar), do not interest the state and corporations as much, because these can be under community and citizens’ control, minimising legal and illegal profit-making.

Essar, Adani and other corporations that GP India has taken head on in India and outside are close to the powers-that-be in Delhi; their pressure must be one reason the government is going hammer and tongs after GP India. It is instructive that GP India first learnt about the MHA’s suspension notice from the media; this was also the case with the two Intelligence Bureau reports against civil society in mid-2014. Is this a new tactic meant to scare civil society -- ‘leak’ such news to the mainstream media first, plant doubts in the minds of readers/viewers of such news, and hope that there will be public lynching of NGOs making the government’s job easier? Whatever happened to the due process of allowing these NGOs to respond to allegations first?

This is yet another indication that the government is not after the truth, neither is it acting to hold NGOs accountable to the law, but is, in fact, using alleged legal violations as a cover for all-out intimidation and harassment.

 Others in the line : Soon after its action against Greenpeace India, the government has also moved against a number of donor agencies. Ford Foundation has been told it will require permission for each grant it makes, the ostensible reason being that it may be funding activities that are outside its mandate or in ways violative of the law. A far more likely reason, however, is that Teesta Setalvad’s organisation Sabrang Trust has received some Ford Foundation funding, and she is as everyone knows, a big thorn in Modi’s flesh, having squarely pointed to his complicity in the 2002 anti-Muslim riots in Gujarat.

Whether the government’s allegations of specific legal violations by both Greenpeace India and Sabrang Trust are valid or not is for these organisations to respond to, and perhaps for a court of law to adjudicate. But it is clear that they are being targeted not for these but for spoiling the party for corporate or communal forces close to the government, which seems increasingly paranoid about allowing freedom of speech and dissent.

In an economic model of ‘growth’ that puts the priorities of corporations above everything else, and has no necessary correlation to poverty eradication and job creation, all hurdles have to be dealt with using such tactics. One of the favourite strategies is to label groups as ‘anti-national’, something that has always been easy in India if the relevant organisation is protesting against ‘development’ projects and taking foreign funds. It is used even when the government is fully aware that the majority of GP India’s funds are from Indian citizens (70,000 of them!).

Who wins?: Unfortunately, these tactics have already worked to subdue many NGOs, especially those who are scared about their FCRA status or other measures by government agencies. In a recent petition initiated by Kalpavriksh, expressing concern regarding the actions against Greenpeace India, representatives of several organisations said they would sign personally but not as an organisation; others did not respond at all. Nevertheless, the petition got over 180 endorsements, many from organisations.

This shows that the government’s scare tactics won’t work with peoples’ movements and groups like GP India, for a simple reason which the government has perhaps overlooked. These movements and groups have solid public support. It is interesting that in all these months of the attempt to vilify and publicly lynch GP India, the number of Indian citizens supporting it both financially and by signature campaigns, has shown an increase in some months.

Other responses are also cause for hope. A broad front of civil society organisations to take on the government is in the making; this formation (as yet informal) is also putting into place support structures for groups that are threatened with illegitimate government actions on their foreign funding or tax status. The relatively independent part of media has also had the courage to stand up for the truth, and the judiciary, at least in the cases involving INSAF and Greenpeace India, has done its job of defending fundamental democratic rights.

Lest it be misunderstood that I am painting all of India’s civil society in an uniformly rosy light, let me categorically state that there are indeed many bad eggs amongst ourselves: NGOs that are running money-making or empire-building rackets, NGOs that do not comply with statutory provisions, and so on. But this does not in any way take away from the analysis that the government’s recent actions are arbitrary and illegitimate, and aimed more at ‘troublesome’ groups than those who are doing illegal things.

The Indian people will not take lying down the new avatar of the MHA as a Ministry for Hounding Activists. In any case, the more the government goes out on a limb to catch troublesome groups, the harder it is likely to fall when the limb cracks under the weight of its own contradictions. It should learn that lesson from Indira Gandhi’s disastrous Emergency experiment.

NB 'National interest' is a term heavily loaded with ideological presumption. At times the word 'nation' acquires God-like overtones, which can be used to stifle debate. The simplest answer is that state officials, government as well as civil society have the responsibility of defining and preserving national interest. There is a difference between the state and government. The latter changes, whereas the state embodies the stable element in society. Bureaucrats are servants of the constitution, not of the government of the day - thus, they may not be ordered to perform illegal acts or acts that violate the letter and spirit of the constitution. Interests may be debated, but if there are conflicts over what they mean, there is no way out except dialogue amongst all three segments in the polity. Moreover, the solutions have to be found within the framework of the constitution - thus it is violative of the law to attempt to frame and implement economic policies that sideline fundamental rights, directive principles or Schedule 5 or PESA. Legal loopholes and sophistry by which 'public interest' is re-interpreted as the interest of private corporations are examples of how formal authority may be deployed to undermine the letter and spirit of the constitution. 

For example, in 2000, the first NDA government had attempted surreptitiously to subvert the protections of Schedule 5: <http://www.pucl.org/reports/National/2001/samatha.htm>

Thus, reason and experience show that all decisions by governments and state officials may not always be in the interests of the people of India; or that there is every possibility of a conflict between some political ideal of 'national progress' upheld by the government, and the lives and interests of people in localities and scheduled areas. In sum, there is no way out of such conflicts except via dialogue with statutory institutions (such as gram sabhas) as well as civil society groups. Some of these may be NGO's in the sense the term is now used, but many may just be popular organisations, which have every right to protest and resist activity that destroys their life pattern. In such cases, if 'national interest' is invoked by officials and ministers, the people have every right to define the national interest otherwise. A democracy must evolve ways to settle such disputes without bloodshed and injustice. If the national leaders deploy force to settle them, its a simple observation that the state will be perceived as an alien force, performing tasks for the rich and powerful. 

Here is a former IAS official on NGO's

The Indian state is the biggest recipient of foreign funds; moreover, there are very large NGO's that are affiliates of the so-called mainstream parties. Vast sums of money have been donated to Hindutva organisations, as well as organisations working for Christian or Muslim charities. I have no doubt some of these are engaged in promoting fundamentalist projects, but it would require research to establish this; and how far they have attempted to influence the Indian polity. It is debatable whether the VHP may be defined as a charitable organisation devoid of political interest. Yet it has enjoyed a tax holiday from 1990:
DS