Limited Freedom of Speech, Monitored NGOs: India's Civil Society Under Pressure

Mann mit Transparent auf Protestveranstaltung gegen Staudämme beim Weltsozialforum 2004 in Mumbai

India likes to consider itself the “world’s largest democracy”. In practice, however, there are many restrictions on the freedom of expression. The space available to civil society organizations for action is increasingly restricted.

Despite freedom of speech is being guaranteed, manifold limits on liberality exist in everyday Indian life. Renowned Indian historian Ramachandra Guha recently listed the reasons why: State authorities, police, and even the courts are continually taking action against those that are allegedly “endangering the social peace” by expressing their views, on grounds that they have supposedly “insulted” specific population groups or even the whole nation. This is then justified by invoking draconian laws from the colonial era (against “sedition”, for example) or more recent times (such as the ban on hate speech against minorities and marginalized groups like Dalits).

Limits on free speech in the public sphere

There is always a politician somewhere (usually a man, though there are exceptions) seeking to attract public attention through such campaigns, using politics dominated by group interests of religion, ethnicity, caste, or other “communal” identities. Books and films are being banned, “rationalists” attacked, and historical scores symbolically settled. It is often those groups who – directly or indirectly – are threatening with violence who reap the benefits of these actions, rather than those who, as targets of the self-styled “people’s anger”, should be protected. To make matters worse, the diverse newspapers and print media – still a rapidly growing market in India –strongly depend on funding from advertising, and not just of the commercial kind, but also on the publication of official announcements by public authorities , such as requests for tenders.

It is because of these deficiencies that Guha characterizes India as a “50-50 democracy” – a democracy functioning only in parts. Under the administration of Prime Minister Narendra Modi, whose Bharatiya Janata Party (BJP) has governed since 2014, Hindu nationalist forces increasingly and aggressively secure more space for themselves the public sphere. Thus, Guha’s balance has even worsened. At the same time, however, it should be noted that the culture of political debate (especially as far as the major political parties are concerned) continues to be lively – as any cursory look at the talk shows from the many news channels or newspapers will demonstrate. For all of the criticism about practical restrictions on freedom of expression, India’s people remain happily “argumentative”, as Amartya Sen once put it.

Indias civil society plays an important role

Beyond its parties and media, India also has an extraordinarily broad spectrum of civil society, encompassing social movements, trade unions, and mass organizations as well as local CBOs (community-based organizations) and national or international NGOs (non-governmental organizations). These enjoy basic freedom of organization in India. In fact, since the 1980s, civil society organizations in India have not only made major strides in social and development work but have also changed the politics of the country with their protests and campaigns. Though such cases surely still happen, it has become markedly more difficult to implement state- or corporate-driven projects (dams, mines, urban expansion) against the will of the affected population.

Civil society in India has also played an important role in the expansion of rights-based policies. India today has a legal right to information, education, and food security, among others, as well as a “Forest Rights Act” – even if the implementation of such rights in practice often falls rather short. Law and reality frequently diverge; people and organizations protesting against the coal mining in the forest areas of Odisha or Jharkhand, for example, face repression and violence from local authorities, the police, militias, and other armed groups.

Civil society organizations and fear of the “foreign hand”

For decades, freedom of organization and political participation have been limited wherever financial support from abroad is involved. As early as 1976, former Prime Minister Indira Gandhi introduced the FCRA (Foreign Contributions Regulatory Act) to prevent political opponents from receiving foreign funding during the Emergency. The law regulates foreign financial inflows to Indian NGOs, subjects them to the control of India’s Ministry of Home Affairs, and bars foreign financial support for activities of a “political nature” (obviously a highly arbitrary category that is subject to interpretation).

Although the state of emergency ended in 1977, this law was never repealed and has since formed the framework for all foreign funding of Indian civil society organizations. The law was toughened in 2010: FCRA-registered organizations must now renew their registration every five years. As of autumn 2016, this process is going on, accompanied by massive organizational and bureaucratic problems and delays, administration, leading to a feeling of great insecurity within the NGO community.

The idea of a “foreign hand” that is exerting a harmful influence on Indian politics and must therefore be controlled, has been of part of the standard repertoire of Indian politics since at least Indira Gandhi’s days. But conditions in the country have changed, so that instead of resistance to an authoritarian style of government, protests today are predominantly in opposition to the negative effects of the country’s rapid economic development.

The otherwise widely respected former prime minister of the Congress Party, Manmohan Singh, took this line in 2012 when he accused international green forces of wanting to obstruct India's development. A leaked 2014 report by India’s domestic Intelligence Bureau estimated that national and international NGOs’ stalling of development projects in India had caused economic damage on the order of two to three percent of gross domestic product. [1]

NGOs are under surveillance

With official action legitimized by such allegations, civil society organizations have been under growing pressure for about four years. The Ministry of Home Affairs uses the FCRA registration as a lever in order to monitor the activities of NGOs and punish them for misconduct. Registration is required to obtain foreign funding; all inflows must go to special accounts that can be inspected by the ministry. In 2012, the ministry, then led by Congress, began revising the FCRA database, which at the time contained well over forty thousand entries.

The first to be screened out were primarily the “inactive” members, i.e., organizations that had sometimes gone for years without delivering an annual report. The procedure led to widespread fear in the NGO community that continues to this day, since some organizations working in accordance with the regulations were still temporarily deregistered because of administrative problems. All in all – as of mid-October 2016 – some 14,000 organizations have lost their FCRA registration since the end of 2011, while over 33,000 continue to be run as registered organizations. Around 2,400 organizations need case-by-case authorization for transfers (these are often organisations that have for the first time applied for FCRA registration, but the list may also include cases where some problems have emerged in the meantime).

Organisations critical of the government are in the focus

Beyond such large-scale measures, the Ministry of Home Affairs has been taking direct action against selected organizations for overtly political reasons. The case of Greenpeace India became particularly well-known: after the Intelligence Bureau had singled out the organization for attacks because of its campaigns against India’s coal policy, the accounts of Greenpeace were blocked and a staff member scheduled to attend a parliamentary hearing in London was not allowed to leave the country. All the same, Greenpeace managed to get a court order to access at least its domestic accounts, which the government had illegally locked as well.

Other organizations involved in critical issues such as energy policy (mining, nuclear power) are also under pressure, including Christian aid agencies in South India that have been accused of deploying foreign aid funding for anti-nuclear protests and of breaching visa regulations. Also affected are “activist-lawyer” NGOs, such as the Lawyer's Collective who that have tried for years to bring Narendra Modi and BJP party strategist Amit Shah to trial for their political responsibility in the riots and pogroms in Gujarat in 2002. [2] Such measures by the state against “activist lawyers” have the signs of a personal vendetta. In contrast, security policy considerations have no major role to play – at least in the cases discussed in the press.

India's government wants to limit criticism

It is difficult to estimate how many organizations have actually lost their FCRA registration for primarily political reasons– perhaps there are a few dozen of them, and in many more cases the situation still awaits clarification. A rather limited group in the great sea of the NGO sector is directly affected, but the entirety of the sector has of course been terrified by such measures. The Indian government does not want to dry up the entire NGO sector – actually, it is far too dependent on them for the provision of services at the local level.

But the government wants to limit political criticism, and in the context of the Indian system, foreign funding provides a convenient handle. The point has been rarely expressed so bluntly as by the former head of the FCRA division in the ministry: “As per the law of the country, you cannot accept foreign funding while opposing the policies of the government.” [3] This kind of mindset has long existed among India's bureaucrats, but its use has intensified in recent years of the Congress government and even more so under Prime Minister Modi.

A black list for foreign organizations

Restrictions affect not only FCRA-registered Indian NGOs, but also foreign “donor” organizations. Some of them (21 cases were documented on 21 June 2016) have been blacklisted by the government, leaving them unable to carry out further bank transfers to India without case-by-case approval (“prior permission”) from the ministry.

The situation here is even less transparent than with Indian NGOs, as this measure is not officially justified or even publicly documented. An affected foreign organization will usually only notice its situation when its transfers stop reaching their Indian recipients. Perhaps the most famous case was that of the Ford Foundation, whose proximity to (and support for) opposition activities became its undoing. A number of church aid agencies and human rights organizations have been affected since then, as well as international advocacy and campaigning organizations that support climate policy or democracy promotion.

One can really only speculate as to the exact grounds on which a specific organization has attracted the wrath of the security agencies; general patterns are difficult to identify. In any case, an affected organization’s inclusion on the blacklist seriously impedes their activities in India in the short term, and requires extensive negotiations with government agencies in the long term.

Future prospects

Just as in many other countries, the scope of action available to civil society in India has been reduced in recent years. Indian democracy continues to allow a considerable degree of dissent and criticism, though those who express it are often not adequately protected from intimidation by powerful interest groups (or even just spotlight-grabbing politicians). Civil society work continues to be welcome in principle, but government aims at controlling and weakening groups that work against specific government and corporate goals (for example in the area of energy policy or large infrastructure or industrial projects) or groups that face basic distrust for religious reasons (especially Christian and Islamic organizations).

There are few general bans on organizations; instead, the government uses the foreign funding of Indian NGOs as a lever to monitor, block, and – occasionally – to punish these groups. The fact of foreign financial support has made it easy for the government (already under Congress, and even more so under the Hindu nationalist BJP) to delegitimize political campaigns, such as those opposing nuclear power plants or coal, by denouncing them as an attempt by foreign agents to thwart India’s rise as a globally significant power. Similar things are being said by countless trolls in the comment sections on Indian news websites, under articles covering NGOs and the FCRA.

At the same time, the volume of foreign funding going to Indian NGOs seems to be plunging, by perhaps a third in the last two to three years. This is evidently not merely (or primarily) the result of governmental restrictions of the space available to Indian civil society. Instead, donor strategies have changed: despite continuing massive social problems in India, donors are reducing their involvement because India is increasingly seen as a country of rapid economic development where classic “development policy” is no longer required. Indian NGOs are distinctly aware of these changes that have occurred in the international perception of India.

What does all of this mean for the future of civil society work in India?

There are some indications that the heyday of internationally-funded NGO work in India is over, at least for those activities that go beyond what the Indian government is ready to accept (though it does not often explicitly acknowledge such acceptance): work in health, education, and social welfare. The current approach to the FCRA renewal has led to uncertainty and fear among much of the NGO community, but not to systematic protests. Besides, the image of Indian NGOs in the country is not necessarily good enough for them to be able to count on broad public support if they campaign for their own interests, especially if the other side once again invokes fear of the “foreign hand”.

The long-established power relations between the Indian bureaucracy and the rest of society probably leads most NGOs to hope for a modus vivendi to be found. The room for maneuver available to organizations whose work is explicitly political and critical of the government has clearly shrunk. But their space for action (and the legitimacy of their work) chould grow as the affected organizations succeed in switching to funding from India itself, rather than relying on foreign sources.

Alternative financing options are necessary

The law on corporate social responsibility (CSR) that came into force in 2014 requires large Indian companies to put two percent of their profits toward social purposes of their choice, including education, combating poverty and inequality, etc. For the numerous NGOs who consider work in social welfare their primary task, the volume of funding mobilized by the CSR law represents a substantial opportunity. But the limitations of such a model are obvious: companies often use CSR to pursue their own goals. For political activism critical of government or even capitalism, this model obviously offers rather limited opportunities.

Civil society actors with such agendas will be left with almost no other option than to rely on a broadly scattered membership base in India itself. Perhaps it will be drawn from members of the country’s fast-growing, well-educated new middle class, some among whom are open to green political ideas.

This article is part of our dossier "Squeezed – Spaces for Civil Society".

[1] Cf. Lola Nayar, “War and Green Peace“, Outlook Magazine, 30 June 2014

[2] Some thousand people, most of them Muslims, were killed at the time – while Modi was Chief Minister of Gujarat.

[3] J.K. Chattopadhyay Interview in Mint, 19 Sept 2015.