CIVICUS speaks to human rights lawyer and researcher Mrinal Sharma about the state of civic freedoms in India. Mrinal works to help unlawfully detained human rights defenders, asylum seekers, refugees and stateless persons in India. She worked as Policy Advisor with Amnesty International India until the Government of India forced the organisation to shut down in October 2020. Her work with Amnesty focused on people who are arbitrarily deprived of their nationality in Assam, the barriers against access to justice in Kashmir and the demonisation of minorities in India. Mrinal had previously worked with the Commonwealth Human Rights Initiative and Refugee Solidarity Network.
Are the conditions to exercise the freedoms of association, peaceful assembly and expression becoming more restrictive under the government of Prime Minister Narendra Modi?
Certainly civic space in India has seen a gradual deterioration under the Modi administration. Ninety per cent of the hate crimes perpetrated over the past decade occurred after 2014, that is, under the Modi administration. According to Article 14’s Sedition Database, since 2010, 11,000 people have been charged with sedition in India. Of all the sedition cases filed for criticising the national government and leaders since 2010, 96 per cent were filed under the Modi administration. India is no stranger to deliberate blocking of internet access and holds the record for imposing the highest number of internet shutdowns in the world. According to Software Freedom Legal Centre’s Internet Shutdown Tracker, the number of internet shutdowns has consistently increased since 2014. They peaked in 2019, reflecting the prolonged communication blackout imposed by the Indian government in Jammu and Kashmir. Moreover, between 2012 and 2020, 148 out of 385 internet shutdowns were imposed to contain ongoing ‘law and order situations’, a euphemism often used to describe peaceful protests. This data indicates the magnitude of restrictions placed on the freedoms of association, peaceful assembly and expression in India.
In addition, the use of restrictive laws such as the Unlawful Activities Prevention Act (UAPA), the National Security Act, the Public Safety Act and other preventive detention laws to curb protests against discriminatory government policies has also become commonplace. Even the raging pandemic did not deter the Indian government from arresting or continuing the detention of human rights defenders despite their age and poor health and high prison overcrowding. In July 2020, Varavara Rao, an 81-year-old poet and activist who was booked under the UAPA for his alleged involvement in the violence that occurred during the Bhima Koregaon celebrations in 2018, tested positive for COVID-19 while detained in an overcrowded prison in Maharashtra. After spending over two and a half years in detention without trial and making multiple failed attempts to seek bail, he was recently released for six months considering his precarious medical condition. Similarly, Safoora Zargar, a research scholar who was three months pregnant at the time, was booked under the UAPA and detained in another overcrowded prison in Delhi for peacefully protesting against the Citizenship Amendment Act (CAA). It required intense international, national and local public campaigning for her to be released on bail. Other students continue to be detained.
The pandemic has been used to activate draconian ‘emergency’ laws. These laws gave sweeping powers to the government to arrest and detain anyone who breached the punitive lockdown imposed to curb the spread of the virus. Journalists, essential workers and those belonging to excluded groups were arbitrarily slapped with these laws. Some were even tortured and killed while in police custody. According to a recent report by the Criminal Justice and Police Accountability Project, most of the First Information reports filed during the lockdown in Madhya Pradesh state were against pedestrians, mostly street vendors and people on two-wheelers, something that evidenced the discriminatory enforcement of the emergency laws.
That being said, the application of these laws is a thread that binds recurrent governments together. It needs to be emphasised that most of these laws were passed by the previous government. The current government has used them to target specific social groups.
What are the main drivers of attacks against civil society activists and organisations?
Civil society plays a very important role in bridging the gap between rights and right-holders. In doing so, it also understands the flaws in social and economic systems and has the power to change the status quo by demanding an end to inequalities and dismantling existing power structures, which it has successfully achieved in the past. Political leaders demonise civil society organisations (CSOs), discredit their work and experience and scapegoat groups of people based on their political beliefs to acquire power for their own political gain.
Consistent attacks take the form of unlawful restrictions and the use of loose and amorphous terms to describe human rights defenders, peaceful protesters and their motivations and mould public opinion, such as ‘anti-national’, ‘urban naxal’ and the more recent ‘aandolanjivis’ (professional protesters). CSOs are also depicted as bearers of a ‘foreign destructive ideology’, a corrupt establishment and the ‘other’ working against the people, while those engaging in such demonisation are presented as representing ‘the people’. This further stokes social hostilities among groups, distracts the public from actual social flaws and allows for the adoption of discriminatory policies. Further, selectively restricting people’s right to the freedoms of expression and association in a way that muzzles criticism and perpetuates the government’s narrative also effectively leads to polarisation, which is a fertile breeding ground for furthering one’s political agenda.
What human rights issues is Amnesty International most concerned about in India?
The gross criminalisation of dissent in India remains highly concerning. Rampant internet shutdowns, excessive, unnecessary and often illegal use of force by the police and unlawful detention under anti-terror laws have become all too common. The government’s heavy-handed response to peaceful protests against the unilateral decision to strip Jammu and Kashmir of its constitutionally guaranteed autonomy amidst a total communication blackout, the enactment of the discriminatory CAA and more recently, the passing of three farming laws that aim to deregulate the agriculture sector in India are a testament to this.
Since September 2020, over 160 farmers have died while peacefully protesting against the farming laws. Young activists supporting the farmers are being detained under sedition charges. At least 50 people were killed in the riots that broke out in North-East Delhi in February 2020. In addition, the bubble of fake news and misinformation facilitated by surveillance-based business models of big tech companies combined with weak data protection frameworks constantly feeds the politics of demonisation in India.
Also concerning are state reprisals against those who report rape and caste-based crimes, and widespread impunity for murders and attacks carried out by vigilante mobs and police officers against religious minorities. To illustrate, despite clear video evidence demonstrating the complicity of police officials in the February 2020 riots in North-East Delhi, not a single police officer has been prosecuted until now. At the same time, while violence and hate speech by the supporters of the CAA are systematically ignored, anti-CAA protesters continue to be harassed and intimidated by the government.
Can you tell us about the Foreign Contribution Regulation Act (FCRA) and its impact on civil society?
The FCRA regulates foreign donations in India. Ostensibly, it was enacted to regulate foreign donations to political parties and keep a check on foreign influence on Indian elections. Amended multiple times since it was first passed in 2010, it has now become an effective weapon in the hands of the Indian government to suffocate Indian civil society. Its latest version imposes discriminatory restrictions on CSOs’ access to funding, making their authorisation procedure onerous, highly bureaucratic and difficult to navigate. Since 2011, going by the government’s own admission, the licences of over 20,000 CSOs have been cancelled. Organisations that dare speak truth to power or challenge human rights violations such as Amnesty International India are attacked with politically motivated charges under the FCRA.
The latest amendment to the FCRA, which was passed in the middle of the pandemic, has further stifled civil society. It prohibits public servants from receiving foreign funds; disallows the transfer of foreign funds from one organisation or individual to another, irrespective of their functional FCRA licence; reduces the utilisation limit of ‘administrative expenses’ from 50 per cent to 20 per cent; extends the time period of suspension of a CSO’s FCRA licence from 180 days to a year; and mandates the receipt of foreign contributions only into a CSO’s FCRA-marked bank account with a designated branch of the government-owned bank in Delhi.
These amendments will effectively stigmatise the association of public servants with non-profits, choke collaborations among CSOs and, particularly with smaller, grassroots CSOs, reduce the funds apportioned for paying staff salaries and conducting field-based projects that come with travelling expenses, and starve CSOs of funds until the government completes its investigation for alleged FCRA violations. They will also hinder the work of CSOs based outside New Delhi, which constitute roughly 93 per cent of all CSOs registered in India, by adding unnecessary travel expenses which would be covered under the reduced 20 per cent cap for administrative costs.
The government has a duty to provide a justification for imposing these stringent restrictions and infringing on the human rights of individuals and organisations to associate and express freely. It needs to demonstrate that these restrictions are indeed legitimate and reasonable and also proportionate to the harm it envisages – an exercise it did not undertake. In fact, it ignored civil society´s calls for the bill to be submitted to a select committee for greater discussion before it was passed. The debate in parliament was also minimal.
The FCRA and its latest amendments have been heavily criticised by the international community, including by Maina Kiai, former United Nations (UN) Special Rapporteur on the rights to freedom of peaceful assembly and of association, and Michelle Bachelet, UN High Commissioner for Human Rights, for being overly broad and vague, but the government has paid no heed. Domestically, the National Human Rights Commission (NHRC) has also sought justifications for mass cancellations of FCRA licences of CSOs.
Paradoxically, political parties continue to receive foreign funds, which was once barred, with minimal restrictions. In fact, this been made has not only easier but also hugely opaque despite recurrent violations of the FCRA by political parties. To illustrate, in 2014, the Delhi High Court ruled that the ruling party, Bharatiya Janata Party, and the Indian National Congress had both violated the FCRA by accepting foreign funds. In 2016 and then in 2018, the Indian government amended the FCRA to legalise foreign funding to political parties and exempt them from scrutiny not just for the funds to come in the future but also for the funds that had already been donated to them in the past. In December 2020, the Central Information Commission, which pioneers the implementation of the 2005 Right to Information Act, ruled that public disclosure of the identity of political parties’ donors does not serve any public interest and therefore is not required.
This clear difference in treatment of political parties and CSOs should be enough to understand the muddied motivations of the FCRA.
Why was Amnesty India forced to shut down, and what have been the consequences?
Amnesty International India was forced to shut down in retaliation for its publication of two critical briefings that underlined the human rights situation in Kashmir and highlighted the role of the Delhi Police in the riots that took place in North-East Delhi in February 2020. Shortly after it released these briefings, all its bank accounts were frozen. The government did not provide any prior warning, notice or reason for freezing the bank accounts. Strapped of the funds that it had raised locally, with the help of ordinary Indians, Amnesty International India was forced to halt all its work and let go of all its employees.
Harassment and intimidation for its human rights work is not new for Amnesty International India. It has faced a relentless smear campaign by the government and government-aligned media outlets since 2016. In 2018, it endured a 10-hour-long raid by the Enforcement Directorate, following which it was forced to let go of a number of staff, adversely affecting its work in India, including with excluded communities. Although the court granted an interim relief to the organisation, a malicious media trial and reduced capacities made it difficult for it to function properly. It is important to note that until today, no formal charges have been filed against the organisation. A year later, in November 2019, amid rumours of impending arrests of top officials, the offices of Amnesty International India and the residence of one of its directors were raided again, this time by the Central Bureau of Investigation, the country’s premier investigative agency, placed under the central government. However, it continued to work, defying all the malice thrown against it and its employees.
But this time, it was more vicious. The immediate impact of the shutdown has been borne by the employees of Amnesty International India – researchers, campaigners, fundraisers – who lost their jobs overnight without any compensation during a period of economic recession that has been worsened by the pandemic. The extensive research projects and campaigns that Amnesty International India was running have all ground to a halt. Taking everything into account, it must be clarified to the government that in the name of holding a ‘foreign entity’ accountable, the Indian government has deprived many of its own citizens of their livelihood. Most importantly, there is now one less voice to hold the Indian government accountable for its excesses and inactions.
Are there any other human rights organisations facing similar challenges?
Various CSOs that have questioned or criticised the government’s policies have faced similar challenges under the FCRA. People’s Watch, Indian Social Action Forum, Hazards Centre, Greenpeace India, Sabrang Trust, Navsarjan Trust, Act Now for Harmony and Democracy, Indian Social Action Forum and Lawyers Collective are some of the groups that have been slapped with politically motivated charges under the FCRA. This is not by accident. There is a deliberate pattern of silencing human rights groups by treating them as criminal enterprises and painting dissenting individuals as criminals. Lawyers Collective, for instance, has worked extensively with victims of the 2002 attacks on Muslims in Gujarat. People’s Watch has been active in campaigning against custodial abuses. Greenpeace India has been at the forefront of fighting for land rights and against climate change and the environmental impact of coalmining.
Besides the FCRA, other draconian laws create a disabling environment for human rights work in India. These include the UAPA, the Public Safety Act and the National Security Act. Advertised as anti-terror laws or laws covering ‘offences against state’, they have created a system of impunity and an effective toolkit to keep people in jail for a prolonged period of time. The conviction rate under these laws is really low. According to the National Crime Record Bureau, in 2018 over 93 per cent of cases under the UAPA were pending before the courts whereas the conviction rate under the UAPA was only 27 per cent. Since 2016, only seven cases of sedition have led to an actual conviction. According to Amnesty International India’s previous research, about 58 per cent of the detention orders passed between 2007 and 2016 under the Public Safety Act, which is applied in Jammu and Kashmir and allows for administrative detention without charge and trial, were quashed by the High Court of Jammu and Kashmir. Between March 2016 and July 2017, 81 per cent of the detention orders were quashed. This demonstrates that these laws are used so that as cases grind through courts, people are deprived of their freedom to mobilise and voice dissent.
What can the international community do to support human rights groups and expand civic space in India?
Broadly, the international community must amplify the voices of those at the forefront of fighting human rights violations in India. At the same time, it must stop assuming a moral high ground and dismissing people’s real or projected anxieties about security, welfare and development. Instead, it must focus on combatting the ‘othering’ of civil society by projecting a vision of a more just, sustainable and equitable world that cannot be achieved without a robust civil society working relentlessly for the people across the length and breadth of the country. It must also be more approachable to local communities.
Specifically, it must hold India accountable to all the international human rights obligations that the country has backed and approved and relies upon while arguing for a stronger seat at the table. Twenty-four years have passed since India submitted its report to the UN Human Rights Committee on how it is implementing its obligations under the International Covenant on Civil and Political Rights, to which it is a state party. The NHRC, India’s premier human rights monitoring body, starkly falls short of the minimum standards laid down by the Paris Principles for national human rights institutions but continues to have an ‘A’ accreditation and thus is able to participate in the UN Human Rights Council. The international community must consistently call for the reform of the NHRC and hold it accountable for the diminishing protection of human rights defenders in India. Human rights groups must be able to repose complete faith in the country’s human rights institutions.
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