India FlagCivic Freedom Monitor: India

Introduction | At a Glance | Key Indicators | International Rankings
Legal Snapshot | Legal Analysis | Reports | News and Additional Resources
Last updated 15 November 2017

Updated: India introduced a new Goods & Services Tax (GST) in July 2017, which replaces the former VAT, service tax and related laws. CSOs receiving or seeking government grants, or CSOs registered or seeking new registration under the Foreign Contribution Regulation Act (FCRA) 2010, must obtain a Unique Identification Number (UID) by registering on Niti Ayog’s (former Planning Commission of India) ‘NGO Darpan’ (NGO Mirror) platform.

Introduction

‘Civil Society’ is not a term commonly used in India, though in recent years the media has begun to use the term. Civil society in India is largely equated with voluntary organizations or the more colloquially used term -- NGO, or Non-Governmental Organization. The Central Statistical Institute of India announced in about 2009 that there were 3.3 million NGOs registered in India or literally one NGO for every 400 Indian citizens. Guide-Star India (GSI) says it has the contact information of about 70,000 NGOs across India and nearly 8,000 have been registered on their portal (www.guidestarindia.org) after verifying the organization’s registration as an NGO, its unique identity based on its tax number, and its operational existence based on proof of an address as well as its voluntary consent to join the portal. There are also about 29,415 NGOs registered under the Foreign Contribution Regulation Act (FCRA).

The voluntary sector of India is noted for its vibrancy, innovation and research-based advocacy.  It has played an important role in supporting government as a partner in nation building. Historically, Indian voluntary development organizations played three significant roles: first, in filling gaps in the government’s welfare systems, such as delivering basic services like health care, education, water and sanitation to the most remote locations in the country; second, in research-based advocacy, such as analyzing the efficacy and reach of various government projects to provide guidance to the government for policy change; and, third in working on a rights-based approach and entitlements. Groups work for marginalized communities in providing them access to basic services, and their modus operandi is primarily to educate and empower the community about their entitlements and review the government plans and policy for their efficacy.

Civil society in India has been fairly organized and active pre- and post-Independence in 1947. The legal regime in India follows common law (a British pre-Independence legacy). The legal framework is generally supportive of civil society. However, in practice, the government sometimes oversteps its ‘regulatory’ role and attempts to get into a ‘control’ mode.

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At a Glance

Organizational Forms Trusts, Societies and Companies
Registration Body State-level authorities.
Approximate Number 70,000 NGOs (according to Guide-Star India's portal)
Barriers to Entry It can take up to a year to complete all the registration procedures.
Barriers to Operations The "advancement of any other object of general public utility" is not considered a charitable purpose under certain conditions. In addition, an institution or trust whose dominant object is political in character is said to not have been established for charitable purpose.
Barriers to Speech and/or Advocacy NGOs cannot engage in political or legislative activities such as endorsing candidates for public office.
Barriers to International Contact None.
Barriers to Resources Significant restrictions under Foreign Contribution Regulation Act 2010 (FCRA).
Barriers to Assembly Permission often required with conditions enforced, particularly at certain places; deportations and criminal sanctions against foreigners being 'associated' with protests; excessive force used often with wooden batons.

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Key Indicators

Population 1,281,935,911 (July 2017 est.)
Capital Delhi
Type of Government Federal parliamentary constitutional republic
Life Expectancy at Birth Male 67.6 years 
Female 70.1 years (2015 est.)
Literacy Rate Male: 81.3%
Female: 60.6% (2015 est.)
Religious Groups Hindu 79.8%, Muslim 14.2%, Christian 2.3%, Sikh 1.7%, other and unspecified 2% (2011 est.)
Ethnic Groups India has more than 2,000 ethnic groups
GDP per capita $6,700 (2016 est.)

Source: The World Factbook. Washington, DC: Central Intelligence Agency, 2015.

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International Rankings

Ranking Body Rank Ranking Scale 
(best – worst possible)
UN Human Development Index 130 ( 2015) 1 – 187
World Bank Rule of Law Index 54.3 (2014) 100 – 0
World Bank Voice & Accountability Index 61.1 (2014) 100 – 0
World Justice Project Rule of Law Index 66 (2016) 1 - 113
Transparency International 85 (2017) 1 – 168
Freedom House: Freedom in the World Status: Free
Political Rights: 2
Civil Liberties: 3 (2017)
Free/Partly Free/Not Free
1 – 7
1 – 7
Foreign Policy: Fragile States Index
72 (2017) 178 – 1

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Legal Snapshot

International and Regional Human Rights Agreements

Key International Agreements Ratification* Year
International Covenant on Civil and Political Rights (ICCPR) Yes 1979
Optional Protocol to ICCPR (ICCPR-OP1) No --
International Covenant on Economic, Social, and Cultural Rights (ICESCR) Yes 1979
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Yes 1968
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Yes 1993
Optional Protocol to the Convention on the Elimination of Discrimination Against Women No  --
Convention on the Rights of the Child (CRC) Yes 1992
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) No --
Convention on the Rights of Persons with Disabilities (CRPD) Yes 2007
Regional Treaties    
South Asian Association for Regional Cooperation (SAARC) Yes 1979
Shanghai Cooperation Organisation (SCO) Yes 2014

* Category includes ratification, accession, or succession to the treaty

Constitutional Framework

The right of all citizens to form associations or unions is guaranteed by the Constitution of India, Article 19(1)(c). 
Article 19 guarantees the following six freedoms:

  1. Freedom of ‘speech and expression’, which allows an individual to take part in public activities. Though the words "freedom of press" are not mentioned in Article 19," freedom of expression" also encompasses "freedom of press". However, reasonable limitations can be imposed to maintain public order and to protect decorum and the dignity of the State.
  2. Freedom to ‘assemble peacefully without arms’, though the State can enforce reasonable limitations to maintain public order and the autonomy and integrity of India.
  3. Freedom to ‘form associations or unions’, with certain restrictions enforced by the State in the interest of public order, morality and the sovereignty and integrity of India.
  4. Freedom to ‘move freely throughout the territory of India’, subject to certain restrictions to maintain the interest of the general public. For instance, the state can restrict travelling or commuting during epidemics to prevent it from spreading.
  5. Freedom to ‘live and settle in any part of the territory of India’, subject to certain limitations by the State to maintain the interest of the general public or to safeguard the rights of the native scheduled tribes and protect them from exploitation and oppression.
  6. Freedom to ‘practice any profession or to carry on any occupation, trade or business’. Here the state may impose justified limitations to protect the general public. Thus, nobody according to the Indian Constitution has the right to run a business which is hazardous or corrupt. Again, to practice any profession or carry out any particular business, professional or technical qualifications may be prescribed.

Non-profit organisations in India must not engage in political campaign activities or legislative activities. Indian not-for-profit entities may "lobby" for non-political causes, however, provided that such activity promotes "general public utility" and is incidental to the attainment of the charity's objects. Societies may have as their primary objective the diffusion of political education. [Societies Registration Act, 1860, Section 20] In addition, under the Foreign Contributions Regulation Act, not-for-profit organizations involved in political activities cannot receive foreign contributions.

National Laws and Regulations Affecting Sector

1. Indian Trusts Act 1882
2. Societies Registration Act 1860
3. Maharashtra Public Trusts Act 1950
4. Foreign Contribution Regulation Act 2010
5. Indian Companies Act 2013
6. Direct Tax Code (replacing the Income Tax Act 1961)
7. Foreign Contribution Regulation Amendment Rules (2015)
8. Goods & Service Tax Act 2017
9. NGO Darpan (to obtain UID)

Pending NGO Legislative / Regulatory Initiatives

A committee appointed by the central government on the orders of the Supreme Court has recommended several steps to ensure the “light regulation” of CSOs so as to reduce harassment against them. A shortened version of the recommendations is now before the Supreme Court, though the government has yet to accept the full set.

The committee, headed by S. Vijay Kumar, a former Secretary in the Ministry of Rural Development, was formed as part of the response to the ongoing writ petition filed by Manohar Lal Sharma. On the Supreme Court’s suggestion, the committee has also drawn up a framework of guidelines for the accreditation of CSOs (through Niti Ayog), auditing of their accounts, and procedures to initiate action for recovering grants in cases of misappropriation.

The committee has recommended the following:

  • The registration procedures should be modernized so as to facilitate the seamless operation of the applicable provisions of Income Tax Act and the Foreign Contribution Regulation Act with respect to CSOs, without the need for cumbersome and intrusive processes.
  • Steps must be taken to reduce the need for physical interface between CSOs and public officials acting under the Income Tax Act and FCRA.
  • A separate law is needed for voluntary agencies engaged in activities of a charitable or “public good” nature to enable more effective and efficient regulation of the sector.
  • Regulation should be ‘light’ and consistent with the fundamental rights, so as to give effect to the objects for which voluntarism is being promoted.
  • Various state-level and existing central laws should be replaced by overarching legislation based on best practices.
  • Details of CSOs should be available as searchable database information.
  • The new framework should enable ‘national uniformity’ of approach following the principle of ‘cooperative federalism’.

We are currently unaware of any other pending initiatives. Please help keep us informed; if you are aware of pending initiatives, write to ICNL at ngomonitor@icnl.org.

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Legal Analysis

Organizational Forms

An NGO can register itself first at the state level either as a ‘public charitable trust’ or as a ‘society’ under the Act of 1860 or as a ‘company’ under Section 8 (Section 25 under the old Indian Companies Act 1956) of the Indian Companies Act 2013.

While the Indian Companies Act 2013 is central/federal legislation, the Trusts Acts and Societies Acts vary from state to state. In Maharashtra State, for example, there is the Maharashtra Public Trusts Act 1950. The same Act is applicable in neighboring Gujarat State, but with some variations. In states that do not have a Trusts Act, the principles of the Indian Trusts Act 1882 apply. The Societies Registration Act 1860 also varies from state to state. For example, a society registered in Maharashtra or Gujarat does not require periodic renewal of registration. However, societies registered in the northeastern states require annual renewal of registration.

To enjoy tax exemption and provide tax deductions to donors, NGOs must register "u/s 12AA" and "u/s 80G" respectively under the Income Tax Act 1961.

Every NGO receiving funds from ‘foreign sources’ requires either prior permission or registration under the Foreign Contributions Regulation Act (FCRA) 2010.

Apart from these key pieces of legislation there may be Labour Laws, Goods & Services Tax (GST) laws also applicable depending on the size or nature of activities undertaken by an NGO. For example, the Employees’ Provident Fund would be mandatory for any NGO employing more than 20 employees (voluntary if less than 20 employees). GST would apply if turnover of goods or commercial services exceeds a sum of two million Indian rupees in any fiscal year.

Trusts
Public charitable trusts may be established for a number of purposes, including poverty relief, education, medical relief, the provision of facilities for recreation, and any other objective of general public utility. Indian public trusts are generally irrevocable. No national law governs public charitable trusts in India, although many states, particularly Maharashtra, Gujarat, Rajasthan, and Madhya Pradesh, have Public Trusts Acts. In states such as these, a trust can be registered with the State Charity Commissioner. In states where there is no Charity Commissioner or a Trusts Act in force, the Deed of Trust may simply be registered with the office of the Registrar of Deeds/Assurances.

Societies
Societies are membership organizations that may be registered for charitable purposes. They are usually managed by a governing council or a managing committee and are regulated by the Societies Registration Act 1860, which has been adopted by various states. Unlike trusts, societies may be dissolved. Virtually every state in India has a Registrar of Societies where a society can be registered.

Companies
The Indian Companies Act 1956 has been replaced by the new Indian Companies Act 2013. The new Act came into force on April 1, 2014 and the old Section 25 has now become Section 8 with further additions.

According to Section 8: “The Central Government may issue a License to:
A Limited or Private Limited Company having as its objects:

  • The promotion of commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment or any such other object and
  • Intends to apply its profits, if any, or other income in promoting its objects and
  • Intends to prohibit the payment of any dividend to its members.

Thus, a not-for-profit company may be registered with the Registrar of Companies.

Public Benefit Status

To be eligible for tax exemption under the Income Tax Act 1961, a not-for-profit entity must be established for religious or charitable purposes. Charitable purposes include "relief of the poor, education, medical relief, and the advancement of any other object of general public utility." The Finance (No.2) Act 2009 added “preservation of environment (including watersheds, forests and wildlife) and preservation of monuments or places or objects of artistic or historic interest” to the list of charitable purposes.

Earlier institutions established for a “charitable purpose” falling under the category of “advancement of any other object of general public utility” were under threat of losing their tax exemption if income from their “business activity” exceeded Rs. 2.5 million during the financial year. This provision has been amended with a requirement that any activity related to trade, commerce or business or any activity rendering any service in relation to any trade, commerce or business for a cess [tax] or fee or any other consideration, irrespective of the nature of use or application or retention of the income from such activity, must meet the following criteria:

  1. Such activity must be undertaken in the course of actual carrying out of such advancement of any other object of general public utility and
  2. The aggregate receipts from such activity or activities during the previous year do not exceed twenty per cent of the total receipts of the trust or institution under such activity or activities of that previous year.

Public charitable trusts, by definition, must be created for the benefit of the public. Societies may be registered for charitable purposes, among other purposes. Section 25/8 companies are formed for the purposes of promotion of commerce, art, science, sports, education, research, social welfare, religion, charity, protection of the environment or any other object.

Section 135 of the Indian Companies Act, 2013 requires every company having Net Worth of Rs. 500/- crore (Rs. 5 Billion) or more, or turnover of Rs. 1,000/- crore (Rs. 10 Billion) or more, or Net Profit of Rs. 5 crore (Rs. 50 Million) or more, to constitute a Corporate Social Responsibility (CSR) Committee of the Board and disclose the composition of the CSR Committee in the Board's Report, formulate a CSR policy and spend at least 2% of its aggregate Net Profit over the block of the previous three years on CSR activities as outlined under Schedule VII of the Indian Companies Act, 2013 and the company’s Annual Report disclose the CSR activities and amounts spent.  

Several not-for-profit Section 8 Companies have been served with a Show Cause Notice under Section 134(8) for violation of Section 134(3)(O) read with Section 135 of the Indian Companies Act, 2013. One such organization, for example, runs centres in major cities of India where children afflicted with cancer and their families receive shelter, healthcare and nutritional support. Section 8 companies that are registered as tax exempt organizations under Section 12AA of the Income Tax Act, 1961 are required to spend at least 85% of their total income in every financial year. It is therefore odd that the Ministry of Corporate Affairs is insisting that such organizations should spend a mere 2% on CSR activities.

Barriers to Entry

The law does not specifically or explicitly prohibit the formation and operation of “unregistered” groups. In fact the Income Tax Act 1961 recognizes both registered and unregistered 'Associations of Persons’ (AOP). The Ministry of Home Affairs also makes it clear that FCRA registration/prior permission would be mandatory for every association (registered or unregistered) intending to receive contributions from any foreign source.

There are no sanctions or penalties for carrying out activities through an unregistered organization, except tax implications.

A trust, society or Section 8 company can be established by either a company or individuals. A trust or company can be established by two individuals whereas a society requires seven founding members. A trust may be settled with a token sum of money (Rs. 500/-) which would then be considered ‘Trust Property’. A society would require no initial capital and a Section 8 company can be established with or without share capital.

Under the Indian Trusts Act 1882, "a trust may be created by every person competent to contract". Under Indian Contract Act, 1872, "Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject."

There is no specific bar on foreigners as founders or trustees under:
1) The Bombay Public Trusts Act 1950;
2) The Indian Companies Act 2013;
3) The Societies Registration Act 1860; or
4) The Income Tax Act 1961.

There is a specific bar only under the FCRA, which applies only if the NGO is seeking a foreign contribution.

Registration fees are nominal. However, systems and processes grind slowly. Often it takes several months and sometimes up to a year to get all the registrations. FCRA applications are required under law to be disposed within a period of 3 months but it generally takes much longer. Government has the right to deny registration or even suspend or cancel an existing registration (income tax exemption or an FCRA registration) under certain circumstances (violation of any provision of the statute or the rules there under) but by due process and procedure including giving the NGO an opportunity to be heard. In case of refusal or cancelation of registration, the NGO would have the right of redress before a higher competent authority.

Generally as long as the objects of the NGO as stated in its charter document are for ‘charitable purpose’ there would be delay but not denial of registration. An existing registration may be cancelled for reasons such as not functioning as per the stated objects, failure to file returns or violation of any provision of the law.

Barriers to Operational Activity

As long as the activities of the NGO are within the framework of ‘charitable purpose’ the law does not impose burdens or constraints relating to operations.

According to Section 9(1) of the Maharashtra Public Trusts Act 1950 “charitable purpose” includes:

  • Relief of poverty or distress
  • Education
  • Medical relief
  • Provision for facilities for recreation or other leisure-time occupation (including assistance for such provision) if the facilities are provided in the interest of social welfare and public benefit
  • The advancement of any other object of general public utility, but does not include a purpose which relates exclusively to religious teaching or worship.

According to Section 2(15) of the Income tax Act 1961 “charitable purpose” includes:

  • Relief of the poor
  • Education
  • Medical relief
  • Preservation of the environment (including watersheds, forests and wildlife)
  • Preservation of monuments or places or objects of artistic or historic interest
  • The advancement of any other object of general public utility.

Amendments made under the Finance Acts of 2008, 2010, 2011 and 2015 have affected all organizations falling under the sixth category -- “The advancement of any other object of general public utility.”

According the Finance Act 2015 amendment: "the advancement of any other object of general public utility shall not be a charitable purpose, if it involves the carrying on of any activity in the nature of trade, commerce or business, or any activity of rendering any service in relation to any trade, commerce or business, for a cess or fee or any other consideration, irrespective of the nature of use or application, or retention, of the income from such activity, unless––
(i) such activity is undertaken in the course of actual carrying out of such advancement of any other object of general public utility; and
(ii) The aggregate receipts from such activity or activities during the previous year do not exceed twenty per cent of the total receipts, of the trust or institution undertaking such activity or activities, of that fiscal year.

One could argue that “improvement of democracy and governance in India through political and electoral reforms” could be deemed as a charitable purpose under the category “Advancement of any other object of general public utility” as long as the organization is not involved in “carrying on of any activity in the nature of trade, commerce or business or any activity of rendering any service in relation to any trade, commerce or business for any fee, tax or other consideration,” even if the aggregate value of receipts from such activity does not exceed twenty percent of the total receipts of the trust or institution in that fiscal year.

However, courts in India have held that an institution or trust whose dominant object is political in character cannot be said to have been established for charitable purpose [LokamanyaTilak Jubilee National Trust Fund, [1942] 10 ITR 26 (Bom.); CIT v. All India Hindu Mahasabha [1983] 140 ITR 748 (Delhi)]. In that case, a trust was created to give effect to the wishes of Lokmanya Tilak as expressed in his will. The trust was created for spreading political education through the Kesari and Maratha newspapers to make people aware of their political rights and rouse them for demanding changes in the structure of the country’s administration. However, the Supreme Court held that the trust was not a public charitable trust as defined under the Bombay Public Trusts Act.The position is summarized in Halsbury's Laws of England: “A trust for the attainment of political objects is invalid, not because it is illegal -- for everyone is at liberty to advocate or promote by any lawful means a change in the law, but because the court has no means of judging whether a proposed change in the law will or will not be for the public welfare or benefit, and therefore cannot say that a gift to secure the change is a charitable gift." This argument was also advanced by Lord Parkar in Bowman v. Secular Society Limited.

Political purposes include, but also extend beyond, the support of political parties or of those seeking political office. Supporting or opposing a change to the law or government policy is a political purpose and not a charitable purpose. Also, attempts to sway public opinion on controversial social issues are legitimate and lawful but not charitable.

A purpose pursued by an NGO would be considered political if:

  • It is concerned with party politics,
  • It involves the dissemination of ‘propaganda’ for some cause or
  • It involves seeking changes to the law, or to the administration of the law, or to government policy.

It is the third of these notions of ‘political’ that creates difficulties for activist welfare organizations. The judicial reasoning that has induced English courts and other Commonwealth country courts, including India, to include activities such as advocating changes to the law within the notion ‘political’ is as follows:

A purpose cannot be held to be charitable unless it is beneficial to the public. Accordingly, when a court has to decide whether a trust or other organization which aims to change the law (or for that matter to change the administration of the law, or some government policy) is charitable, it must determine whether the change sought would be beneficial. But a court, whose task is to resolve disputes according to existing law, cannot rule on whether a particular change to the law would or would not be beneficial.

Every NGO is independent where matters concerning internal governance are concerned. The government has the right to ‘regulate’ but not ‘control’ the internal affairs of an NGO. Fines and penalties may be imposed for compounding certain irregularities such as not filing returns in time. NGOs may also be subject to random financial or tax assessments by the regulatory authorities.

The Finance Bill, 2017

The Finance Bill, 2017 was approved after modifications by both Houses of Parliament and received the assent of the President of India on March 31, 2017. 

The key changes are the following:

1) Reduction in limit of cash transactions

The limit of cash transactions has been reduced to INR 200,000/-:

(a) In aggregate from a person in a day;

(b) In respect of a single transaction; or

(c) In respect of transactions relating to one event or occasion from a person.

2) Restriction on inter-charity corpus donations

One charitable organization may contribute funds to another charitable organization, but, not as a corpus donation or grant.

3) Additional conditions for applicability of Section 11 and 12

The Finance Act, 2017 has amended sections 12A and 12AA to impose following additional conditions on organizations registered under section 12AA:

a) To make application to the Commissioner of Income Tax (CIT) within 30 days if there is any change in the objects clause which do not conform to the conditions of registration and have it registered.

b) Mandatory filing of income tax returns within the time allowed under section 139(4A).

4) Restriction on cash donations

Sub-section (5D) of section 80G has been amended to lower the limit on cash donations under section 80G to two thousand rupees only. The move is in consonance with government’s overall efforts to push towards a cashless economy and increase transparency in the system.

5) Expansion of power of survey

Amendment of section 133A has now included the place of ‘activity for charitable purpose’ within the scope of Section 133A. This amendment expressly empowers the income tax authority to enter any places of activity of charitable purpose for inspecting books of accounts, verifying cash, stock or valuable articles or furnishing any relevant information.

Barriers to Speech / Advocacy

There are no specific restrictions on the ability of NGOs to criticize the Government or to advocate for politically unpopular causes, including issues of human rights and democracy. However, NGOs cannot engage in political or legislative activities such as endorsing candidates for public office. NGOs have nonetheless often been successful in advocacy work, especially on issues such as ‘Child Rights’ and marginalized communities and thus indirectly influence the drafting of more enabling laws and policies.

In addition, On March 24, 2015, India's Supreme Court declared Section 66A of the Information Technology Act ("IT Act") as unconstitutional. Prior to this, section 66A of the IT Act was often misused by politicians, political parties and their followers to silence critics through the power to arrest and jail those who spoke their minds, especially on social media. As a result of the decision, content on the Internet cannot be taken off without a court order and there is no longer the threat of arrest for posting content on the Internet. The court, however, still upheld the validity of section 69B and the 2011 guidelines for the implementation of the IT Act, which allow the government to block websites if their content has the potential to create communal disturbance, social disorder or affect India's relationship with other countries.

Barriers to International Contact

There are no specific restrictions on the ability of NGOs to contact and cooperate with colleagues in civil society, business and government sectors within India. As of November 2014, neither the law nor government imposes restrictions on participating in networks or on accessing the Internet.

Barriers to Resources

1. Foreign Contributions Regulation Act 2010 (FCRA)

Under the Foreign Contribution Regulation Act 2010 (FCRA), all NGOs in India, such as public charitable trusts, societies and Section 8 companies, wishing to accept foreign contributions must: a) register with the Central Government; b) agree to accept contributions through designated banks; and c) maintain separate books of accounts with regard to all receipts and disbursements of funds.

NGOs are required to report the amount of the foreign contribution, its source, the manner in which it was received, the purpose for which it was intended, and the manner in which it was used. Foreign contributions include currency, securities, and articles. Funds collected by an Indian citizen in a foreign country on behalf of an NGO registered in India are considered foreign contributions. Moreover, funds received in India, in Indian currency, if from a foreign source, are considered foreign contributions.

Under FCRA 2010, a foreign contribution does not include commercial receipts. NPOs can receive consultancy or other commercial receipts from foreign sources even without FCRA registration. FCRA-registered NGOs should receive such receipts in their domestic account, and such commercial receipts are not required to be reported to the FCRA department.

FCRA guidelines require that an organization allowed to receive funds from a foreign source may provide funds from its FCRA account to another organization only if the other organization also has clearance from the Home Ministry to receive funds from a foreign source.  

If the foreign donor agency specifies in writing that the whole or part of the grant may be directed to the recipient organization's capital fund or endowment, the organization may do so. Such an endowment or capital fund may be invested in an approved security.

The “interest” or “dividend” generated should be accounted for as an amount received by way of interest on a deposit drawn out of funds received from a foreign source. In other words, even the interest or dividend received in India, in Indian rupees, must be disclosed in the Return. Contributions from an expatriate Indian are not considered "foreign contributions" if the individual has not become a citizen of a foreign country.

The government has blacklisted dozens of NGOs for failing to adhere to different aspects of the FCRA, including 69 NGOs in March 2015 alone. In addition, on March 3, 2015, the Ministry of Home Affairs cancelled the FCRA registration of 1,142 NGOs that received funding from foreign sources in one state – Andhra Pradesh – for failure to file Annual Returns for the years 2009 to 2012.

On June 16, 2016, the Ministry of Home Affairs (MHA) cancelled “with immediate effect” the registration of the NGO Sabrang Trust under the FCRA for receiving funds from any ‘foreign source’. Sabrang Trust is run by civil rights activist Teesta Setelvad, who is known for espousing the cause of Gujarat riot victims, and has received funds from the US-based Ford Foundation, which was put on a “watch-list” following a Gujarat government complaint that it was interfering in India's "internal affairs" and promoting "communal disharmony" through engagement with Setelvad's NGO. The MHA argued that foreign funds received by Sabrang Trust under the FCRA license had not been used for the rightful purposes.

The FCRA has not been without opposition. The Bombay High Court in an interim order on January 30, 2017 ruled that while the Union Ministry of Home Affairs (MHA) has powers under the FCRA to “regulate or even prevent the acceptance of foreign funds by an association", the Act does not "provide for a government to stifle the very functioning of individuals or associations.” The Court thus ordered the de-freezing of the domestic and non-FCRA bank accounts of the NGO Lawyers Collective. In November 2016, the MHA had cancelled permanently the FCRA registration of Lawyers Collective because it allegedly misused foreign funds.

Other court rulings, however, have upheld the FCRA. For example, on January 11, 2017, the Supreme Court of India ordered an audit of 3 million NGOs and penal action against those found not submitting their records on time in accordance with General Financial Rules, 2005. The audit was mandated to be completed by March 31, 2017. The targeted NGOs were those receiving funds from the government or foreign sources under the FCRA. According to Supreme Court bench members, "mere blacklisting of NGOs who do not file annual statements will not suffice but also action must be initiated like criminal proceedings for misappropriation and civil action for recovery of given funds.” The order came after an amicus curiae cited a finding by the Central Bureau of Investigation (CBI) that only 10% of NGOs filed annual income and expenditure statements.

2. Foreign Contribution Regulation Rules
In December 2015, the Ministry of Home Affairs (MHA) issued amended Foreign Contribution Regulation Amendment Rules. The application process for registration under the Foreign Contributions Regulation Act (FCRA) is now completely online and reporting requirements on foreign contributions have increased significantly. The MHA subsequently issued a circular dated December 14, 2015 notifying that application for renewal of FCRA Registration must now be made online at fcraonline.nic.in. TThe last date for filing a renewal application was extended to March 15, 2016, and then extended again to June 30, 2016. The validity of FCRA registration for organizations that were registered before the enactment of FCRA 2010 was extended to October 31, 2016.  Previously, the deadline was October 31, 2015 for organizations that were registered before the 2010 FCRA came into force on May 1, 2011. Under the new system there is no need to post hard copies, and fees can be paid online.

Under the amended Foreign Contribution Regulation Rules:

    • Application for new registration, prior permission, or renewal of existing registration must now be made in the new Form FC 3.
    • The application must be digitally signed.
    • Applications sent by post will not be accepted. The process is now compulsorily online. Payment of processing fees has also been made electronic.
    • Previously organizations that received foreign contribution in excess of 10 million rupees (about $146,000) were required to put in the public domain summary information about the receipt and utilization of foreign contributions for the year of receipt and one year thereafter. Under the new Rules, every person receiving foreign contribution, regardless of the amount received, is required to post on one's own website or on the government's website the annual audited statement of accounts of receipt and utilization. This reporting must include income and expenditure statements, receipt and payment accounts, and balance sheets, and must be completed within nine months of the end of the financial year when the foreign contribution was received.
    • Organizations receiving foreign contributions are now required to post quarterly statements containing details of foreign contributions received on its own website or the government's website within 15 days of the completion of a quarter of a financial year giving details of donors, amounts of foreign contribution received, and dates of receipt.
    • Banks are now required to report within 48 hours to the government any foreign contribution received by any person, including those having registration or prior permission under the FCRA.
    • An NGO that is registered under the FCRA but does not receive foreign contributions may continue to file annual returns in the new Form FC 4 to keep the registration alive. However, such organizations have been exempt from filing certificates issued by chartered accountants or income and expenditure statements, along with receipt and payment accounts and balance sheets.
    • NGOs are now required to notify the government of change of name or address within 15 days. Similarly, the government must be notified within 15 days of changes to an NGO's nature; objectives; registration with local or relevant authorities; or bank, bank branch, or designated bank account number for foreign contributions, or of replacement of 50% or more of “key members” of the organization. The term “key members” has not been defined, though it likely would include key office bearers like President, Secretary, or “Chief Functionary.”  
    • Annual returns must be filed in the new Form FC 4, along with an "affirmation" that the NGO has “not used the foreign funds for activities that are likely to prejudicially affect the sovereignty and integrity of the country, the security, strategic, scientific and economic interests of the State and the public interest.” Organizations that work on human rights issues, legal rights, policy, governance, electoral reform, and other sensitive issues, are likely to be affected by this provision. 

Domestic Funding
An NGO may mobilize funds in every lawful manner including by way of soliciting donations and grants or sponsorships or organizing fundraising events.

Under amendments to Section 11(4A) of the Income Tax Act, 1961, an NGO is not taxed on income from a business that it operates that is incidental to the attainment of the objects of the NGO, provided that the entity maintains separate books and accounts with respect to the business. Furthermore, certain activities resulting in profit, such as renting out auditoriums, are not treated as income from a business. 

The Finance Act, 2008 had changed the definition of "charitable purpose" such that the “advancement of any other object of general public utility” would not be considered a “charitable purpose” if it involved carrying on any activity in the nature of trade, commerce, or business, or any activity rendering services in relation to trade, commerce, or business for a fee, tax, or other consideration. However, the Finance Act, 2015 limited this exception by exempting the aggregate value of the receipts from such activities up to 20% of the total receipt of the trust or institution in that fiscal year. Two years later, The Finance Act, 2017 was passed by the Parliament on March 30, 2017, which, among other changes:

·         Restricts inter-charity corpus donations (i.e., provides that one charitable organization may contribute funds to another charitable organization, but not as a corpus donation or grant);

·         Conditions tax exemption under Sections 11 and 12 on the timely filing of a tax return; and

·         Mandates that in order to receive available tax deductions, a donation for an amount larger than 2,000 rupees must be made by cheque or electronic transfer (and not in cash), which is part of the government’s efforts to push towards a cashless economy and increased transparency.

Local Ganapti mandals, Navratri mandals, associations and societies which are unregistered but seek donations for various programs and religious functions will now be required to seek permission.

Permission certificate issued by the office of the charity commissioner to raise funds by such unregistered bodies and individuals will be valid for only six months and an organization will have to seek fresh permissions each time the certificate lapses to continue seeking donations or alternately seek registration as a charitable trust or society under the Act of 1860.

Raising funds without such permission could attract jail term of three months and or a penalty up to one and a half times the total amount of donations collected by such unregistered bodies and individuals.

Amendment of the Maharashtra Public Trust Act (MPTA), 1950
On the state level, Maharashtra has regulated the funding of NGOs. For example, in Maharashtra "in the name of bringing accountability and transparency in the transactions of unregistered NGOs or groups who collect donations for charitable, religious or public purposes, the state cabinet approved stringent rules that will regulate these donations." The Maharashtra state cabinet approved on April 18, 2017 an amendment of the Maharashtra Public Trust Act (MPTA), 1950 to make it compulsory for unregistered organizations or even individuals who seek donations to receive permission from the assistant or deputy charity commissioner and require that all such donations and other transactions by such unregistered bodies and individuals be audited by the charity commissioner. Nonetheless, some civil society experts and activists believe the amendment is appropriate and needed and that charitable trusts (including societies registered under the Act of 1860) which are already registered with the Charity Commissioner have no reason to feel concerned or uncomfortable. They argue that currently there is no regulation that monitors these donations and their use and that there is frequent misappropriation of funds under the garb of donations so these organizations must be made more accountable.

The proposed penalty for violating the above amendment under Section 66 of the MPTA 1950, such as collecting donations without prior permission of the charity commissioner, is a jail term of three months and/or a penalty up to 1.5 times the total amount of donations collected.

All organizations other than registered public trusts will be covered under the new rules. This amendment may also affect crowd funding platforms which thus far have remained unregulated.

Barriers to Assembly

In 2017, there have been two prominent legal issues affecting the right to freedom of assembly, which are discussed below.

1. Ban on Protests at Jantar Mantar

In October 2017, the National Green Tribunal (NGT) placed a ban on all protests at Jantar Mantar in the heart of New Delhi.  NGT had directed the Delhi government, Delhi police and New Delhi Municipal Council to stop all protests at Jantar Mantar and to remove the protesters sitting there to Ramlila Ground. Social activists and environmentalists decried the move as yet another attempt by the government to curb protests and dissent and the freedom of assembly.

The National Green Tribunal was established in the year 2010 under the National Green Tribunal Act 2010 for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources, including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.

NGT held that the protests were in violation of environmental laws including the Air (Prevention and Control of Pollution) Act, 1981 and upheld the right of the residents of the surrounding area to live peacefully and comfortably. NGT imposed the ban after hearing a plea filed by some residents of Jantar Mantar road, who had claimed that processions and agitations “violate their right to live in a peaceful and healthy environment, right to silence, right to sleep and right to life with dignity”.

Questioning the logic behind the order, civil rights activist and co-convener of National Campaign for People’s Right to Information, Anjali Bharadwaj, stated, “the issue is not of noise pollution but of what kind of space people are getting to express themselves freely and it links to our fundamental right of speech and expression. From the civil society perspective it would be very regressive to shut down this space which is close to Parliament.” Also, there is no empirical data to support the alleged claim of noise pollution.
Jantar Mantar has been a popular place for protestors for more than a quarter of a century. Even there protestors were given very limited space. It was never a venue for big protests. Ramlila Maidan is venue for much larger rallies and protests.  In New Delhi, Jantar Mantar has often been equated to the Speaker’s Corner at Hyde Park in London and synonymous with the rights of people to protest against government policy or injustice. The NGT order has changed this set up for the time being and now only an intervention by the Supreme Court can help restore the right of people to protest in the area.

2. Amnesty International Charged with Sedition
A panel discussion organized by Amnesty International (India) at United Theological College in Bangalore on Saturday August 13, 2017, barely 48 hours before India celebrated entering its 70th year of Independence, turned chaotic as some “pro-freedom” Kashmiris, most of whom were youngsters and students, allegedly entered into heated arguments with a Kashmiri Pandit leader who was praising the Indian Army. Amnesty International India had organized the event as part of a campaign to seek justice for "victims of human rights violations" in Jammu and Kashmir. The police were invited and present at the event.

Acting on a complaint filed by the Akhil Bharatiya Vidyarthi Parishad (ABVP), the J.C. Nagar police on 15th August (India’s Independence Day) charged Amnesty International India under Section 124-A of the Indian Penal Code, which defines sedition as "brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government of India".

Amnesty has questioned why organizing an event to defend constitutional values is now being branded 'anti-India' and criminalized? International human rights law protects the right to peacefully advocate political solutions that do not involve incitement to discrimination, hostility or violence.

Under Section 124-A of the Indian Penal Code (IPC) ‘Sedition’ covers: “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection (which includes disloyalty and all feelings of hate) towards the Government established by law in India.”

Constitutional jurist and senior Supreme Court Advocate, Mr. Fali Nariman avers: “‘Sedition’ in India is not unconstitutional, it remains an offence only if the words, spoken or written, are accompanied by disorder and violence and/or incitement to disorder and violence. Mere hooliganism, disorder and other forms of violence, though punishable under other provisions of the penal code and under other laws, are not punishable under Section 124A of the penal code. Likewise, mere expressions of hate, and even contempt for one’s government, are not sedition. When a person is dubbed “anti-Indian”, it is distasteful to India’s citizenry, but then to be “anti-Indian” is not a criminal offence, and it is definitely not ‘sedition’.”

According to Mr. Soli Sorabjee, former Attorney General of India: “Sedition, according to the Supreme Court of India, are the acts which have a tendency and intention to disturb law and order or incite violence. After all, it is a section which awards life imprisonment and has very serious consequences. So the Supreme Court has construed it in that fashion and said it very clearly that even if you use words that vigorously criticize the government or comment on the actions of the government, that is not sedition. That is our law and that is how Section 124A was interpreted and upheld as constitutional by a Constitution Bench.”

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Reports

UN Universal Periodic Review Reports April 10, 2008 Session
Reports of UN Special Rapporteurs

India

USIG (United States International Grantmaking) Country Notes

India

U.S. State Department Country Reports on Human Rights Practices: India
Fragile States Index Reports Foreign Policy: Fragile States Index
IMF Country Reports India and the IMF
International Commission of Jurists

India

 

International Center for Not-for-Profit Law Online Library

India

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News and Additional Resources

While we aim to maintain information that is as current as possible, we realize that situations can rapidly change.  If you are aware of any additional information or inaccuracies on this page, please keep us informed; write to ICNL at ngomonitor@icnl.org.

General News

Protesters detained near Jantar Mantar (November 2017)
Police detained four protesters and will initiate legal action against a group of right-wing activists after they marched to Kerala Bhawan on Jantar Mantar Road without prior permission. The protesters had reached the barricade that bans them from entering the zone. The incident happened in the afternoon when a group led by students reached the Kerala Bhawan against the alleged killings of RSS workers in Kerala. Police said around 100 of them were stopped at the barricade, but they continued to raise slogans against the government.

"Right to Privacy is a fundamental right, it is intrinsic to right to life" (September 2017)
The Supreme Court (SC) ruled that privacy is a fundamental right because it is intrinsic to the right to life. This judgement is a blow to Aadhaar as the Centre now has to convince SC that forcing citizens to give a sample of their fingerprints and their iris scan does not violate privacy. The question about the constitutional status of right to privacy arose in a bunch of petitions led by retired HC judge KS Puttaswamy, which in 2012 challenged the UPA government's decision to introduce the biometric data-enabled Aadhaar ID for citizens.

Panel calls for 'light regulation' of NGOs (July 2017)
A high-power committee appointed by the central government on the orders of the Supreme Court has recommended several steps to ensure the "light regulation" of non-governmental organisations (NGOs) so as to reduce their harassment. A shortened version of the recommendation is now before the Supreme Court, although the government is yet to accept the full set. The committee recommended that "registration procedures be modernised so as to facilitate the seamless operation of the applicable provisions of the Income Tax Act and Foreign Contribution Regulation Act with respect to NGOs without the need for cumbersome and intrusive processes." On the Supreme Court’s recommendation, the committee has drawn up a framework of guidelines for the accreditation of NGOs, audits of their accounts, and procedures to initiate action for recovering grants in the case of misappropriation.

Maharashtra cabinet approves stringent rules to regulate transactions of unregistered NGOs (April 2017)
The state cabinet approved an amendment of the Maharashtra Public Trust Act, 1950 to make it compulsory for unregistered organizations or even individuals who seek donations to take permission from the assistant or deputy charity commissioner, and all the donations and other transactions will be audited by the charity commissioner.

Renewal of FCRA Licence Denied to 1,300 NGOs in 2016 (March 2017)
More than 1,300 NGOs were refused renewal of licence to receive foreign funding last year over violations of the Foreign Contributions Regulation Act 2010 and the rules made under it. Minister Kiren Rijiju in a written reply to a question in the Rajya Sabha said that licences of over 14,000 NGOs had been cancelled to date for violations of FCRA, 2010, as well as for violations of rules under the Act. NGOs were told to apply for renewal of their FCRA licence by October 31, 2016. However, when around 11,319 NGOs did not file the renewal application within the deadline, their registrations were deemed expired with effect from November 1, 2016. In addition, over 1,300 NGOs were found unfit for renewal of licence on grounds of having violated FCRA 2010 and the rules framed under the Act.

Major Christian Charity Is Closing India Operations Amid a Crackdown (February 2017)
India's crackdown on foreign aid will claim its most prominent casualty this month, as a Colorado-based Christian charity that is one of India's biggest donors closes its operations here after 48 years, informing tens of thousands of children that they will no longer receive meals, medical care or tuition payments. The shutdown of the charity, Compassion International, on suspicion of engaging in religious conversion, comes as India, a rising economic power with a swelling spirit of nationalism, curtails the flow of foreign money to activities it deems "detrimental to the national interest."

Narendra Modi's Crackdown on Civil Society in India (January 2017)
Among their common traits, illiberal strongmen share a virulent mistrust of civil society. Here in India, Prime Minister Narendra Modi's government is going after their money. Mr. Modi's government has also been openly hostile to civil society groups. It repeatedly denounces human rights and environmental activism as "anti-national" — a phrase that carries connotations of treason.

Foreign Funding Law Used to Harass 25 Groups (November 2016)
The Indian central government's refusal to renew foreign funding licenses of 25 nongovernmental organizations (NGOs) without valid reasons violates their rights to freedom of expression and association, Amnesty International India and Human Rights Watch said. On November 5, 2016, media reports quoted unnamed officials from the Ministry of Home Affairs as saying that the NGOs were denied permission under the Foreign Contribution Regulation Act (FCRA), which regulates foreign funding for NGOs, because their activities are not in the "national interest". While the government has not published the list of affected groups, it appears to include several human rights organizations.

Sedition case filed against Amnesty International India (August 2016)
The Bengaluru Police have filed a criminal case against Amnesty International India for organizing an event as part of a campaign to seek justice for human rights violations in Jammu and Kashmir. The event involved discussions with families from Kashmir, who were featured in a 2015 report, who had travelled to Bengaluru to narrate their personal stories of grief and loss. The Newsminute has reported that a First Information Report was filed on the basis of a complaint filed by the Akhil Bharatiya Vidyarthi Parishad (ABVP), a student organization affiliated with the Rashtriya Swayamsevak Sangh (RSS), which is linked to the Bharatiya Janata Party.

FCRA violations: Government cancels Teesta Setalvad NGO’s registration (June 2016)
The Home Ministry cancelled the registration of activist Teesta Setalvad’s Sabrang Trust under the Foreign Contribution Regulation Act, 2010 (FCRA) for alleged violation of its provisions, thus barring the organisation from receiving any foreign funds. The ministry alleged that Sabrang Trust used foreign contributions for purposes that are not authorised under FCRA, mixed foreign and domestic contribution, and utilised foreign contribution for personal gain.

UN rights experts ask India to repeal FCRA (June 2016)
Three UN human rights experts have called on India to repeal a law restricting NGOs' access to crucial foreign funding, saying its provisions are increasingly being used to "silence" groups that are critical of government's policies.

The KPMG Survey of Corporate Responsibility Reporting 2015 (November 2015) 
The results of KPMG’s Survey of Corporate Responsibility Reporting 2015 on corporate citizenship reveal that most companies produce annual reports in compliance with the Companies Act, 2013 and the CSR Rules, and many in the prescribed format, which suggests a focused approach for compliance with CSR requirements.

Government Drops Two Contentious Clauses on NGOs (September 2015)
Wary of being dubbed "anti-civil society", the Narendra Modi government has decided to drop a contentious clause in the Foreign Contribution Regulation Rules (FCRR), 2015, which would have made it mandatory for NGOs receiving foreign contributions to declare their social media accounts such as their Twitter handle and Facebook pages with the government. It will be made optional instead. The government has also dropped the clause which required NGOs to post their returns and activities on a weekly basis. It will now be done quarterly.

Supreme Court strikes down Section 66A of IT Act (March 2015)
The Supreme Court declared Section 66A of Information Technology Act as unconstitutional and struck it down. This section had been widely misused by police in various states to arrest innocent persons for posting critical comments about social and political issues and political leaders on social networking sites. The court said such a law hit at the root of liberty and freedom of expression. The court, however, upheld the validity of section 69B and the 2011 guidelines for the implementation of the IT Act, which allow the government to block websites if their content has the potential to create communal disturbance, social disorder or affect India's relationship with other countries.

Civil society wants government to end campaign of intimidation against NGOs (November 2014)
Amid definite signs of unease within the government over the roles of NGOs and human rights activists who have been critical to its policies, civil society leaders from across the country joined the environmental group Greenpeace India in demanding the home ministry end its campaign of intimidation. Asking the government to "respect right to dissent" in a free and democratic society like India, the leaders emphasized that the roles of civil society should be seen positively. The home ministry had submitted an affidavit in the Delhi High Court against Greenpeace India on October 9 and told the High Court that Greenpeace India was working against national interest by often opposing government policy.

India's pioneering CSR law could have promise, but progress is slow (October 2014)
India became the first country to mandate corporate social responsibility (CSR) by law in an effort to share the cost of development with the many companies growing fat on its economic rise. The government first estimated CSR spending could top $3.3 billion, exciting development actors who saw a significant source of new funding. But more than seven months after the ambitious rules came into force, implementation is slow and officials are slashing spending estimates because companies don't expect to meet their targets in the first year.

The foregoing information was collected by Noshir H. Dadrawala, CEO - Centre for Advancement of Philanthropy, India.

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