19, Jul 2019 | Divya Trivedi
During the first term of Prime Minister Narendra Modi, individuals and organisations that called out the Sangh Parivar’s divisive agenda of communal polarisation or opposed the government’s high-handedness on policy matters were targeted for action. The first few weeks of the government after Modi’s re-election in May this year indicate that his second term is likely to be more of the same. In what is seen as a step to intimidate and harass them for their work relating to the protection of human rights, the Central Bureau of Investigation (CBI) has framed criminal charges against the leading public interest group Lawyers Collective.
Lawyers Voice, a non-governmental organisation (NGO) purported to have political affiliations with the ruling Bharatiya Janata Party (BJP), filed a public interest litigation (PIL) petition with the Supreme Court on May 8 seeking a court-monitored probe by a Special Investigation Team (SIT) into the Centre’s “apparent illegality and non-action” against Lawyers Collective and its founding trustees Indira Jaising and Anand Grover for alleged violations under the Foreign Contribution Regulation Act (FCRA). The NGO demanded criminal prosecution and registration of cases against them for offences under the Indian Penal Code (IPC), the Prevention of Money Laundering Act, the Prevention of Corruption Act (PCA) and the Income Tax Act.
Lawyers Collective is known for its human rights advocacy and legal aid and intervention in areas of domestic violence, sexual harassment at workplace, rights of the LGBTQ community, and access to health care. It has taken up cases that directly oppose powerful individuals in the ruling dispensation, specifically Home Minister Amit Shah in the Sohrabuddin Sheikh encounter case. Other sensitive cases on its plate include the defence of those detained in the Bhima Koregaon case and the Police Commissioner of West Bengal, Rajiv Kumar. It has represented the human rights activist Teesta Setalvad, who campaigned to hold Modi criminally responsible for the 2002 Gujarat riots. Grover had appeared for Yakub Memon, who was convicted in the Bombay blasts case, and argued for the commutation of his death sentence.
On May 15, Anil Kumar Dhasmana, an Under Secretary in the Ministry of Home Affairs (MHA), filed a complaint alleging that Lawyers Collective had diverted foreign contributions received by it under the FCRA for activities not mentioned in the Objects of Association of the organisation and that the funds were used for personal expenses. On June 13, in uncharacteristic haste, the CBI registered a first information report (FIR) against Lawyers Collective, senior advocate Anand Grover and its other unnamed functionaries under various sections of the IPC, the FCRA and the PCA, 1988.
By contrast, in the controversial Rafale deal case, the CBI dragged its feet over filing an FIR for months despite being under immense public pressure to do so. Now, the government has told the Supreme Court that there is no need for an FIR in the deal, let alone an investigation.
Indira Jaising and Grover expressed shock and outrage at the CBI’s move. They said the FIR had no basis in fact or law and that they would defend themselves in accordance with law in every forum.
The PIL filed by Lawyers Voice was heard by a Supreme Court bench headed by Chief Justice of India (CJI) Ranjan Gogoi, who immediately issued notice to the respondents. He passed an order that the pendency of the petition would not come in the way of government agencies proceeding in the matter, even though the petitioner’s advocate had not orally sought any interim orders. Lawyers Collective saw this as it being victimised for Indira Jaising’s involvement in a case pertaining to accusations of sexual harassment against CJI Gogoi.
“It is obvious to us that this is victimisation on account of Ms Jaising taking up the issue of the procedure adopted in relation to the allegations against the Chief Justice of India by a former employee of the Supreme Court, which Ms Jaising has done in her capacity as a concerned citizen, a senior member of the Bar and a women’s rights advocate, without commenting on the merits of the allegations. Considering that Ms Jaising has been publicly vocal on the issue of due process of law in relation to the conduct of the in-house inquiry, the Chief Justice ought to have recused himself from hearing the matter,” a statement by Lawyers Collective said.
Lawyers Collective further pointed out the arbitrary manner in which the PIL was listed for hearing. The petition was filed on May 6, a number of objections were removed on May 7 and, according to Lawyers Collective, though the matter was not orally mentioned on that day, it came to be listed in Court No.1 on May 8 “contrary to the circulars and notifications of the Supreme Court in respect of listing”.
With regard to the accusation of misutilisation of funds under the FCRA, Lawyers Collective said it had had no foreign funding since 2016 when the MHA cancelled its FCRA registration. It subsequently challenged the cancellation of Lawyers Collective’s registration; the matter is pending before the Bombay High Court.
The FCRA was introduced to alleviate concerns around the “national interest” and it regulates the acceptance of foreign funds by individuals and organisations. The law requires licences to be renewed every five years and provides for suspension of licences and freezing of bank accounts during investigation. In practice, it has been used to target organisations that criticise the government and demand accountability.
The Modi government cancelled the FCRA licences of more than 20,000 NGOs in its first term. At that time, civil society organisations spoke up against the selective targeting of NGOs that either belonged to non-Hindu faiths or were involved in seeking justice for victims of caste and religious persecution or those that criticised mining and infrastructure-related projects. These included Sabrang India, Navsarjan Trust, Hazards Centre, Anhad, and People’s Watch.
These and other organisations continue to face the wrath of the state through threats of investigation, choking of funds and vilification by a pliant media.
In a report released recently,“Laws Designed to Silence: The Global Crackdown on Civil Society Organisations”, Amnesty International listed 50 countries where anti-NGO laws were implemented. Speaking about India’s FCRA regime, Aakar Patel, head of Amnesty India, said: “India has the dubious honour of being among those countries which suppress human rights work under the pretext of outlawing foreign influence. The oppressive FCRA, which restricts how civil society organisations can access foreign funding, has often been used to curb dissent and immobilise human rights organisations that expose violations and speak truth to power.”
The Women Human Rights Defenders International Coalition called upon the government to “stop the political crackdown on civil society organisations and ensure an enabling environment for civil society to freely promote and protect human rights”. It said it was “deeply concerned with the current use of FCRA regulations to curb the activities of civil society organisations in India who are engaged in crucial work to ensure democratic processes and ongoing protection of human rights”.
In June 2016, the government suspended the licence of Lawyers Collective for six months. The violations listed included the use of funds to organise rallies and dharnas with a political colour, diversion or misuse of foreign contributions and their use on air travel, draft legislation meetings, media advocacy with Members of Parliament in March and April 2010 for the draft legislation on HIV/AIDS Bill, and the receipt of foreign funds meant for Grover as the then United Nations Special Rapporteur on Right to Health. In November that year, the MHA permanently cancelled the FCRA registration of Lawyers Collective, alleging discrepancies in foreign contributions cited in its returns filed with the Ministry.
The order stated that Indira Jaising violated FCRA norms by receiving foreign funds between 2006-07 and 2013-14 when she was a government servant, that is, when she served as the Additional Solicitor General of India under the United Progressive Alliance government. Reportedly, the FIR against Lawyers Collective mentions that after it appeared prima facie that there were violations, the Ministry got on-site inspection of the accounts done in January 2016 and sought explanations.
Not satisfied with the replies, the Ministry cancelled Lawyers Collective’s registration.
In its defence, Lawyers Collective said that there was no basis for the allegations. It said Indira Jaising’s remuneration was permissible under the FCRA and that it was paid by Lawyers Collective before she became the Additional Solicitor General and this continued during and after her tenure in that capacity. She had taken the Law Minister’s permission to continue to receive the remuneration under the Law Officers (Terms and Conditions) Rules, which was admitted by the MHA. The MHA’s allegation was on the basis that as Additional Solicitor General Indira Jaising was a government servant, which she was not. This could not be the basis of alleged offences under the PCA, stated Lawyers Collective.
It went on to say that expenses reimbursed to Grover were permissible under the FCRA and the regulations under it. But the MHA apparently ignored these suggestions. Following this an appeal was filed in the Bombay High Court, which passed interim orders noting that the submissions made by the MHA were vague and bereft of reasoning. In January 2017, in a major relief to Lawyers Collective, the Bombay High Court de-freezed its domestic accounts, allowing it to resume its legal work. The order also put on hold the government’s direction to the Charity Commissioner to dispose of all assets of Lawyers Collective under Section 22 of the FCRA.
Questioning the timing of the filing of an FIR against it, Lawyers Collective said: “For nearly two and half years, the CBI, functioning under an NDA [National Democratic Alliance] regime, did not think it fit to register any criminal cases against the Lawyers Collective and/or its office bearers, since there was no criminality involved. There has been no change in circumstances or material on record since 2016 and hence the question arises what has changed between 2016 and 2019. There is no material to show that any of the provisions invoked under the IPC, [the] PC Act have any basis.”
It said the main protagonist of the NGO that filed the PIL against it was Neeraj, head of the legal cell of the BJP in Delhi.
“The organisation claims it has no income and no PAN card, a mandatory requirement for filing a PIL. The petition did not have the basic averments of a writ petition under Article 32 of the Constitution, and therefore was not maintainable,” said Lawyers Collective, expressing surprise that notice was issued on the petition.
‘Pattern of intimidation’
Henri Tiphagne of the Human Rights Defenders Alert (HRDA) and Maja Daruwala, senior adviser of the Commonwealth Human Rights Initiative, wrote to the National Human Rights Commission (NHRC) expressing concern on the arbitrariness of the CBI action against Lawyers Collective. They brought to the Commission’s notice that filing of criminal charges against Lawyers Collective had no material basis. Daruwala stated that a pattern of intimidation was going on against anyone who challenged government policies. The HRDA requested the NHRC to act on its long-standing request for urgently reviewing the FCRA.
The NHRC, currently headed by former CJI H.L. Dattu, said the matter of the FCRA was outside its purview but it was empowered under the “Protection of Human Rights Act, 1993, to examine the issue to make it non-discriminatory and to avoid arbitrariness”. It has forwarded the complaints to the Director, CBI, and sought a progress report from it on the status of the investigation within four weeks.
The original article can be read here.