India: Special Rapporteur’s Legal Analysis Argues Restrictions On Foreign Funding Contrary To International Law
PUBLISHED: APRIL 22, 2016
This 2016 legal analysis by UN Special Rapporteur Maina Kiai examines India’s Foreign Contributions Regulation Act (FCRA) – which regulates foreign funding to certain individuals, associations and companies – and argues that it is not conformity with international law, principles and standards.
The FCRA, which was enacted in 2010, bars “organizations of a political nature” from accepting foreign contributions. Acceptance of foreign contributions may further be prohibited where the Government “is satisfied that the acceptance of foreign contribution… is likely to affect prejudicially… public interest.”
The Special Rapporteur argues that the ability of civil society organizations to access resources, including foreign funding, is a fundamental part of the right to freedom of association under international law, standards, and principles – and more particularly part of the right to form an association.
He further asserts that India’s limitations on access to foreign funding do not meet “the stringent test for allowable restrictions” under international law. This test requires that restrictions be (1) prescribed by law; (2) imposed solely to protect national security or public safety, public order, public health or morals, or the rights and freedoms of others; and (3) “necessary in a democratic society.” The FCRA fails on all three prongs of the test.