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Analysis on International Law, Standards and Principles Applicable to the Foreign Contributions Regulation Act 2010 and Foreign Contributions Regulation Rules 2011

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Wednesday 20 April 2016

ANALYSIS ON INTERNATIONAL LAW , STANDARDS AND PRINCI PLES

APPLICABLE TO THE

FOREIGN C ONTRIBUTIONS R EGULATION ACT 2010 AND
FOREIGN C ONTRIBUTIONS R EGULATION R ULES 2011

BY THE U NITED N ATIONS SPECIAL R APPORTEUR ON THE R IGHTS TO
FREEDOM OF PEACEFUL ASSEMBLY AND OF ASSOCIATION
M AINA K IAI

1. Introduction

1. The Foreign Contributions Regulation Act (“FCRA 2010” or “the Act”) is sta ted to
be “An Act to … regulate the acceptance and utilization of foreign contribution or
foreign hospitality by certain individuals or associations or companies to prohibit
acceptance and utilization of foreign contribution or foreign hospitality for any
activities detrimental to the national interest and for matters connected therewith
or incidental thereto .”1

2. The Foreign Contributions Regulation Act (FCRA 2010) defines a list of
individuals and entities barred from accepting foreign contributions.
“Organizations of a politic al nature” are among them .2 Section 9 FCRA 2010
empowers the Central Government, inter alia , to prohibit acceptance of foreign
contribution s where the Government “is satisfied that the acc eptance of foreign
contribution … is likely to affect prejudicially… public interest.” 3 Section 12(4)
FCRA 2010 sets out the conditions for registration under the Act. These include
1 See Foreign Cont ribution (Regulation) Act, No. 42 of 2010, preamble. 2 See section 3 (1) of the Foreign Contribution (Regulation) Act, No. 42 of 2010. 3 See section 9(e)(ii) FCRA 2010 .

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that the acceptan ce of foreign contribution is not likely to affect prejudicially , inter
alia , the scientific or economic interest of the State or the public interest .4

3. The Foreign Contributions Regulation Rules, 2011, define “organ izations of a
political nature” in a broad manner 5. No clarification of the notions “security,
strategic, scientific or economic intere st of the State ,” or of “the public interest” is
provided for.

4. It has come to the attention of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association that the accreditation of many
organizations under the FCRA law is cu rrently being reviewed. Many civil society
organizations (CSOs) in India depend upon this accreditation to access foreign
funding. Moreover, they depend upon foreign funding to carry out their operations
and assist millions of Indians in pursu ing their political, cultural, economic and
social rights . The Special Rapporteur urges the authorities of the Union of India
to take this analysis into account as it proceeds with the accreditation process. In
addition, s ev eral cases are currently pending in different Courts of the Union of
India . T hey regard on the one hand, specific organizations facing operational
constraints, limitations and measures imposed upon them under t he mentioned
law and rules and , on the other hand, challeng es to the constitution al validity of
stipulations of the Foreign Contributions Regulation Act and Rules of the Union of
India. Different state and non -state actors involved in these legal procedures may
have an interest in this analysis against international law, standards and
principles.

5. It is against this background that the United Nations Special Rapporteur on the
right s to freedom of peaceful assembly and of a ssociation submi ts this
information note to the Government of India . It focuses on two questions of
international law, standards and principles: (1) Is access to resources, in
particular foreign funding, part of the right to freedom of association under
international law, standards and principles and more specifically of the right to
form an association? (2) If so, on what basis may States restrict access to foreign
funding under international law, standards and principles ?
2. Summary of the argument

4 See section 12(4)(f) FCRA 2010 . 5 See section 5 of the Foreign Contribution Regulatio n Rules (2011).

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6. For the reasons outlined below, the Special Rapporteur on the right to freedom of
peaceful assembly and of association find s that access to 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 forming
an association . Therefore, any restriction on access to foreign funding must meet
the stringent test for allowable restrictions for the right to association developed
by the international human rights bodies. Given this narrow test, restricting
access to foreign funding for associations based on notions such as “political
nature”, “economic interest of the State” or “public interest” violates the right
because these terms or definitions are overly broad, do not conform to a
prescribed aim, and are not a proportionate res ponses to the purported goal of
the restriction. Such stipulations create an unacceptable risk that the law could
be used to silence a ny association involved in advocating political, economic,
social, environmental or cultural priorities which differ from those espoused by
the government of the day . These restrictions as defined by the Foreign
Contribution Regulation Act (2010) and Rules (2011), do not meet the obligations
of the Union of India under international law, standards and principles.
3. The status of access to resources , in particular
foreign funding

Issue No. 1. Is access to resources, in particular foreign funding, part of the
right to freedom of association under international law, standards and
principles?

4.1. P reliminary question of the Indian reservation to the ICCPR

7. The right to freedom of association is incorporated in art 22 of the International
Covenant on Civil and Political Rights (ICCPR). In 1979, when acceding to the
ICCPR, the Republic of India, formulated a reservation : ‘With reference to (…)
article (s) (…) 22 of the International Covenant on Civil and Political Rights the
Government of the Republic of India declares that the provisions of the said
[article] shall be so applied as to be in conformity with the provisions of arti cle 19
of the Constitution of India.’ 6 Article 22(1) of the ICCPR states that ‘ everyone
6 Reservation of India to the ICCPR, Chapter IV,
https://treaties.un.org/pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=1&mtdsg_no=I
V-3&chapter=4&lang=en#EndDec .

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shall have the right to freedom of association with others… ’7 whereas Article 19
of the Indian Constitution provides the ‘right to form an association’. The right to
freedom of association as defined by art 22 of the ICCPR, includes the right to
form an a ssociation 8.

8. The Human Right s Committee state s in its General Comment 24 on issues
relating to reservations made upon ratification or accession to the Covenant : ‘Nor
should (… ) reservations seek to remove an autonomous meaning to Covenant
obligations, by pronouncing them to b e identical, or to be accepted only insofar
as they are identical, with existing provisions of domestic law.’ 9 Th us, th e right to
form an asso ciat ion has to be interpreted in conformity with international law,
principles and standards for all matters concerning the formation of associations,
such as access to resources being an integral part of the right to freedom of
association. Restrictions to th e right, or any part of the right, must meet the
requirements under international law. 10

7 International Covenant on Civil and Political Rights, art. 22, Mar. 23, 1976, 999 U.N.T.S. 171
[hereinafter ICCPR]. 8 United Nations Human Rights Council, Report of the Special Rapporteur on the Rights of
Freedom of Peaceful Assembly and Association, at para. 53, U.N. Doc. A/HRC/20/27 (May 21,
2012), ‘The Special Rapporteur emphasizes that the right to form and join an association is an
inher ent part of the right to freedom of association.’
http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A -HRC -20 –
27_en.pdf Se e also UN Declaration on Human Rights Defenders and the Commentary to the
Declaration as published by the the n Special Rapporteur, July 2011
http ://www.ohchr.org/Documents/Issues/Defenders/CommentarytoDeclarationondefendersJuly20
11.pdf . 9 Human Rights Committee, General Comment 24, General comment on issues relating to
reservations made upon ratification or accession to the Covenant or the Optional Protocols
thereto or in relation to declarations under article 41 of the Covenant, UN Doc
CCPR/C/21/Rev.1/Add.6 (1994), para 19. The Human Rights Committee equally stated, in line
with the Vienna Convention on the Law of Treaties (Jan. 27 1980, 331 UNTS 1 155) that States
may not invoke provision of its internal law as justification for its failure to perform a treaty.
Human Rights Committee, General Comment 31, The nature of the general legal obligation
imposed on States parties to the Covenant, UN Doc CCP R/C/21/Rev.1/Add.13. 10 In addition, the Human Rights Committee indicates: ‘It is desirable for a State entering a
reservation to indicate in precise terms the domestic legislation or practices which it believes to
be incompatible with the Covenant obligati on reserved; and to explain the time period it requires
to render its own laws and practices compatible with the Covenant. States should also ensure
that the necessity for maintaining reservations is periodically reviewed.’ (See Human Rights
Committee, Gen eral Comment 24, para 20). By lack thereof, it is the Special Rapporteur’s
interpretation that the Union of India is obliged to fully observe the right to freedom of association
as defined in art 22 of the ICCPR.

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9. The right to freedom of association is enshrined in article 22 of the ICCPR 11. The
ICCPR broadly protects the right to freedom of association and permits only
narrowly drawn limitations on the right. States’ obligations under the ICCPR are
twofold. On the one hand, States have a positive obligation to create an enabling
environment in which the rights guaranteed by the ICCPR can be exercised. On
the other hand, States h ave the negative obligation to refrain from interference
with the rights guaranteed. The right to freedom of association is not an absolute
right, but is subject only to the limitations permitted by international law. 12

10. The right to freedom of association is protected in regional human rights treaties
around the world, with language similar to that of Article 22 the ICCPR 13. In
particular, the commissions and courts charged with the authoritative
interpretation and enforcement of the European Convention of H uman Rights
(ECHR) and the American Convention of Human Rights (ACHR) have developed
similar jurisprudence to the U nited Nations Human Rights Committee in
recognizing the right to freedom of association and determining the requirements
of an allowable rest riction. Therefore, even though India is not party to these
conventions, the guidance from these bodies further informs the international
norms that govern States’ obligations to protect the right to freedom of
association.

4.2. Access to resources as pa rt of right to freedom of association

11. Given the above clarification on the reservation made by India, the first question
can be dealt with: Is access to resources, in particular foreign funding, part of the
right to freedom of association under internatio nal law, standards and principles?

11 International Covenant on Civil and Political Rights, art. 22, Mar. 23, 1976, 999 U.N.T.S. 171
[hereinafter ICCPR]; See also Universal Declaration of Human Rights, art. 10, G.A. Res. 217A
(III), U.N. Doc. A/810, at 71 (1948) [hereinafter UDHR]; American Convention of Human Rights,
art. 16, 1144 U.N.T.S. 143 (1969) [hereinafter ACHR]; African Charter on Human and People’s
Rights, Art. 10, June 27, 1981, 21 I.L.M. 58 [hereinafter ‘African HR Charter’]; European Conv. on
Human Rights, art. 11, Nov. 4, 1950, Europe. T.S. No. 155 [hereinafter ‘EC HR’]. 12 India acceded to the ICCPR on April 10, 1979. The Indian Supreme Court has held that the
rights guaranteed by the Covenant ‘elucidate’ and ‘effectuate fundamental rights guaranteed’ by
the Indian Constitution. See People’s Union for Civil Libertie s v. Union of India (1997) 3 SCC 433
(where the Court found that ‘…it would suffice to state that the provisions of the covenant
[ICCPR], which elucidate and go to effectuate the fundamental rights guaranteed by our
Constitution, can certainly be relied up on by courts as facets of those fundamental rights and
hence, enforceable as such.) 13 See supra note 11 .

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A. The right to access foreign funding is protected by Article 22.

12. The FCRA is applicable to a variety of individuals and associations .14 The focus
of this analysis is on associations as per the Special Rapporteur ’s mandate . The
right to access funding is a direct and essential component of the right to
freedom of associatio n. Many CSO s, and especially human rights organizations,
function as ‘not -for -profit ’ entities and therefore depend almost exclusively on
external sources of funding to carry out their work. Therefore, ‘undue restrictions
on resources available to associations impact the enjoyment of the right to
freedom of association and also undermine civil, cultural, economic, political and
social rights as a wh ole. ’15

13. For these reasons, the Human Rights Committee 16 – the body charged with
authoritative interpretation and enforcement of the ICCPR – has consistently
expressed concern over foreign funding restrictions as an impediment to fully
realizing the right to freedom of association. For example, after reviewing
Egyptian legislation which required non -governmental organizations ( NGOs )
receiving foreign funding to register with the government, the Committee stated
that:

The State Party should review its legisla tion and practice in order
to enable non -governmental organizations to discharge their
functions without impediments, which are inconsistent with the
provisions of article 22 of the Covenant, such as prior
authorization, funding controls, and administrativ e dissolution. 17

14. The Human Rights Committee reiterated this concern when evaluating an
Ethiopian law prohibiting Ethiopian NGOs from obtaining more than 10% of their
budget from foreign donors. The law in question also prohibited NGOs
considered by the go vernment to be ‘foreign ’, from engaging in human rights and
democracy related activities. The Committee stated:
14 The Foreign Contribution (Regulation) Act, No. 42 of 2010; Indian Code (2010), v. 51, Section
3. Hereinafter, the reference ‘FCRA’ is used to refer to both the Foreign Contribution Regulation
Act (2010) and the Foreign Contribution Regulation Rules (2011), unless it flows from the context
that either one of them is meant specifically. 15 See also United Nations Human Rights Council, Report of the Special Rapporteur on the
Rights of Freedom of Peaceful Assembly and Association, at para. 9, U.N. Doc. A/HRC/23/39
(April 24, 2013) [Hereinafter UN S R Access to Resources Report] http://freeassembly.net/wp –
content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf 16 Hereinafter re ferred to as Human Rights Committtee. 17 U.N. Human Rights Committee, Concluding Observations of the Human Rights Committee:
Egypt, at para. 21, U.N. Doc. CCPR/CO/76/EGY (November 28 2002),
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.CO.76.EGY.En?Opendocument .

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The State party should revise its legislation to ensure that any
limitations on the right to freedom of association and assembly are
in strict compliance with articles 21 and 22 of the Covenant, and in
particular it should reconsider the funding restrictions on local
NGOs in the light of the Covenant and it should authorize all
NGOs to work in the field of human rights. The State party should
no t discriminate against NGOs that have some members who
reside outside of its borders. 18

15. The United Nations General Assembly echoed this principle in the Declaration on
Human Rights Defenders which states, ‘[e]veryone has the right, individually and
in asso ciation with others, to solicit, receive, and utilize resources for the express
purpose of promoting and protecting human rights and fundamental freedoms
through peaceful means . . . . ’19 The Special Representative of the Secretary –
General on the situation of human rights defenders has also stated ‘governments
must allow access by NGOs to foreign funding as a part of international
cooperation, to which civil society is entitled to the same extent as
Governments. ’20

16. The Human Rights Council resolution 22/6 ca lls upon States to ensure ‘that no
law should criminalize or delegitimize activities in defense of human rights on
account of the origin of funding thereto’. In addition, art 2 of the International
Covenant on Economic, Social and Cultural Rights requires States to ‘take steps,
individually or through international assistance and cooperation […] to the
maximum of their available resources’ for the progressive realization of the rights
in in the Covenant. Reading this jointly with art 11 of the same Covenant , which
recognizes the essential importance of international co -operation based on free
consent for the realization of right s, the conclusion is that States have the
obligation to mobilize resources available within the society at large, including the
ones available from the international community 21.
18 U.N. Human Rights Committee, Concluding Observations of the Human Rights Committee:
Ethiopia , at para. 25, U.N. Doc. CCPR/C/ETH/CO/1 (August 19, 2011),
http://daccess -dds -ny.un.org/doc/UNDOC/GEN/G11/448/95/PDF/G1144895.pdf?OpenElement . 19 Declaratio n on the Rights and Responsibilities of Individuals, Groups and Organs of Society to
Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, U.N.
General Assembly, U.N. Doc. G.A. Res. 53/144, 9 December 1998, art. 13 (under this f ramework,
States are supposed to adopt legislation to facilitate and not impede the solicitation, receipt and
use of resources.) [Hereinafter Declaration on Human Rights Defenders]. 20 Special Representative of the Secretary -General on the Situation of Huma n Rights Defenders,
United Nations Genera l Assembly, A/59/401 (2004) at para. 82(l). 21 Human Rights Council, Report of the Special Rapporteur on the Rights of Freedom of Peaceful
Assembly and Association, at para. 31, U.N. Doc. A/HRC/20/27 (May 21, 2012),

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17. In his 2012 report to the U nited Nations Human Rights Council , the Special
Rapporteur on the rights to freedom of peaceful assembly and of association
underscored that ‘the ability to access funding and resources is an integral and
vital part of the right to freedom of association.’ 22 The report explains :

The ability to seek, secure and use resources is essential to the
existence and effective operations of any association, no matter
how small. The right to freedom of association not only includes
the ability of individuals or legal entities to form and join an
association but also to seek, receive and use resources – human,
material and financial – from domestic, foreign, and international
sources. 23

B. Regional human rights m echanisms protecting the right to access
foreign funding as part of the right to association

18. The European and Inter -American human rights systems have also found that
restricting access to funding may infringe on an NGO’s right to freedom of
association. 24 The European Court of Human Rights (ECtHR) – the entity
charged with enforcement of the European Convention on Human Right s
(ECHR ) – has confirmed that a Member State measure that restricts an NGO’s
access to funding may infringe i ts right to the freedom of association. 25 The Inter –
American Court of Human Rights (IACtHR) and the Inter -American Commission
of Human Rights (IACHR) are the main institutions responsible for enforcing and
interpreting ACHR rights. The IACHR has determined that ‘the right to receive
international funds in the context of international cooperation for the defense and
promotion of human rights is protected by freedom of association, and the State

http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A -HRC -20 –
27_en.pdf . 22 See also Human Rights Council, Report of the Spec ial Rapporteur on the Rights of Freedom of
Peaceful Assembly and Association, at paras. 67 -68, U.N. Doc. A/HRC/20/27 (May 21, 2012),
http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A -HRC -20 –
27_en.pdf . 23 UN SR Access to Resources Report, supra note 12 at para. 8. 24 See ECHR, supra note 11 ; ACHR, supra note 11 . 25 In Ramazanova v. Azerbaijan , the ECtHR found that ‘even assuming that theoretically the
association had a right to exist pending the state registration, the domestic law effectively
restricted the association’s ability to function properly without legal entity status. It could not, inter
alia, receive any ‘grants’ or financial donations that constituted one of the main sources of
financing of non -governmental organizations in Azerbaijan. W ithout proper financing, the
association was not able to engage in charitable activities which constituted the main purpose of
its existence.’ Ramazanova v. Azerbaijan, App. No. 44363/02, Eur. Ct. H.R. (2007), para. 59,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -79301.

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is obligated to respect this right without any restrictions that go beyond those
allowed by the right of freedom of association. ’26 The IACHR has found that
restrictions on receiving ‘international funding to defend political rights ’ are not
permitted by international law. 27

19. Based upon these and other decisions by regional human rights mechanisms,
the Human Rights Committee , the UN General Ass embly, and the report of the
U.N. Special Rapporteur on the rights to freedom of peaceful assembly and of
association, access to resources, in particular foreign funding, are c onsidered to
be part of the right to freedom of association under international human rights
law.
4. Conditions for legitimate restrictions to foreign
funding

Issue No. 2. I f the right to access resources is part of the right to freedom
of association, when and how may States restrict access to foreign funding
under international law, standards and principles ?

20. Restrictions on foreign funding create significant barriers for NGOs to function.
Because access to foreign funding is a part of the right to association, any
restriction must meet the requirements set forth in the ICCPR, which only permits
restrictions on freedom of association under narrowly tailored circumstances. 28
Again, it is instructive to note that the same test is applicable to restricti ons on
the right to freedom of association as guaranteed in Article 11 of the ECHR and
Article 16 of the ACHR.

21. The Human Rights Committee explained in Belyatsky v. Belarus , that restrictions
on the right to freedom of association must meet the following three
requirements: (1) pr escription by law; (2) the law may be imposed solely to
protect national security or public safety, public order, public health or morals, or
26 Inter -American Commission on Human Rights, Democracy and Human Rights in Venezuela ,
para. 585, OEA/Ser.L/V/II. Doc. 54 (December 30 2009). 27 Inter -American Commission on Human Rights, Second Report on the Situation of Human
Rights Defenders in the Americas , (December 31 2011) [Hereinafter IACHR Report] at para. 185
(noting that ‘a situation different from the one just described would be one in which an
organization was proselytizing on behalf of a certain political party or candidate to a particular
post. Under this circumstance, the activity would not be protected by the aforem entioned
standard.’). 28 Infra .

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the rights and freedoms of others; and (3) the restrictions must be ‘necessary in a
demo cratic society. ’29 The Human Rights Committee elaborated that the
protection afforded by Article 22 extends to all activities of an association. 30 The
jurisprudence of the ECtHR and the IACtHR has also held that allowable
restrictions on the right to freedom of association must meet the same,
enumerated three -prong test. 31
A. Prescribed by Law

22. The Human Rights Committee has explained that, to meet the requirement that a
restriction be ‘prescribed by law ’, a restriction must be ‘formulated with sufficient
precision to enable an individual to regulate his or her own conduct accordingly
and it must be made accessible to the public. ’32 Furthermore, to fulfill this prong,
‘the law itself has to establish the conditions under which the rights may be
limited. ’33 In order to meet this principle of legality , the law should not use vague,
imprecise, or broad definitions of legitimate motives for restricting the
establishment of an NGO. 34 A law cannot allow for unfettered discretion upon
those charged with its execution. 35

23. It is acknowledged that it is difficult to attain absolute precision in the framing of
laws . However , any restriction on a CSO ’s access to foreign funding must be
precisely drafted so as to eliminate the possibility of arbitrary or overly -broad
29 Aleksander Belyatsky et al. v. Belarus, U.N. Human Rights Committee, Communication No.
1296/2004, U.N. Doc. CCPR/C/90/D/1296/2004, at para. 7.3 (July 24, 2007). [hereinafter
Belyatsky]. 30 Korneenko, et. al v. Belarus, U.N. Human Rights Committee, Communication No. 1274/2004,
CCPR/C/88/D/1274/2004 (10 November 2006) [hereinafter Korneenko]. 31 ECHR, supra note 11 ; ACHR, supra note 11 ; See Koretskyy v. Ukraine, App. No. 40 269/02,
Eur. Ct. H.R. ( 2008), para. 43, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 –
85679; Gorzelik v. Poland, App. No. 44 158/98, Eur. Ct. H.R. (2004), para. 53,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -61637; Sidiropoulos , App. No.
26695/95, para. 32; Case of Escher et al. v. Brazil, Preliminary Objects, Merits, Reparations, and
Costs, Inter -Am. Ct. H.R. (ser. C) No. 200, para 173 (July 6, 2009). 32 U.N. Human Rights Committee, General Comment No. 34(Article 19: Freedom of opinion and
expression) para. 25, U.N. Doc. CCPR/C/GC/34 (12 September 2011) [Hereinafter General
Comment No. 34]. See also See Koretskyy v. Ukraine, App. No. 40269/02, Eur. Ct. H.R. (2008),
para. 47, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -85679 . See Case of Kimel
v. Argentina, Merits, Reparations, and Costs, Inter -Am. Ct. H.R. (ser. C.) No. 177, para 63 (May
2, 2008); Case of Uson Ramirez v. Venezuela, Preliminary O bjection, Merits, Reparations, and
Costs, Inter -Am. Ct. H.R. (ser. C) No. 207, para 56 (November 20 2009). 33 U.N. Human Rights Committee, General Comment No. 27(Freedom of movement, Art. 12),
para. 12, U.N. Doc. CCPR/C/21/Rev.1/Add.9 (1999) [hereinafter Ge neral Comment No.27] (Article 12 of the ICCPR includes exactly the same language regarding restrictions on the right to
freedom of movement as article 22.). 34 IACHR Report, supra note 22, at Recommendation 17. 35 General Comment No. 34, supra note 32 at para. 25.

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interpre tations of its terms. 36 For example, in Zhechv v. Bulgaria , the ECtHR
found that the term ‘political activity ’ was too broad and open to so many
potential interpretations that most activities carried out by any organization could
be considered a political activity. 37

24. Where access to foreign funding is restricted or prohibited on the basis of the
particular activi ty of an organization, the law would need to provide a definition
that was precise enough to allow such organizations to be on notice. The FCRA
define s ‘political nature ’ to include:

(i) organisation having avowed political objectives in its Memorandum of
Ass ociation or bylaws;
(ii) any Trade Union whose objectives include activities for promoting
political goals;
(iii) any voluntary action group with objectives of a political nature or
which participates in political activities;
(iv) front or mass organisations like Students Unions, Workers’ Unions,
Youth Forums and Women’s wing of a political party;
(v) organisation of farmers, workers, students, youth based on caste,
community, religion, language or otherwise, which is not directly
aligned to any political party, but whose obje ctives, as stated in the
Memorandum of Association, or activities gathered through other
material evidence, include steps towards advancement of political
interests of such groups;
(vi) any organisation, by whatever name called, which habitually engages
itself in or employs common methods of political action like ‘bandh’ or
‘hartal’, ‘rasta roko’, ‘rail roko’ or ‘jail bharo’ in support of public
causes. 38

25. On its face, the FCRA 39 do es not provide the necessary precision required for
clarity and notice. It lists ex amples of groups that could be defined as having a
‘political nature ’, but does not provide further definitions or examples for the
terms ‘political objectives,’ ‘political activities,’ or ‘political interests.’ This appears
36 See Ezelin v. France, App. No. 118 00/85, Eur. Ct. H.R. (1991), paras. 21 –22, 45,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -57675 . 37 See Zhechev v. Bulgaria, App. No. 57045/00, Eur. Ct. H.R. (2007), para. 55,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -81209 (‘For instance, in the present
case these courts [Bulgarian national courts] deemed that a campaign for change s in the
constitution and the form of government fell within that category. In another recent case these
same courts had, more questionably, stated that the ‘holding of meetings, demonstrations,
assemblies and other forms of public campaigning’ by an assoc iation campaigning for regional
autonomy and alleged minority rights also amounted to political goals and activities within the
meaning of Article 12 § 2 of the Constitution of 1991. ) 38 Foreign Contribution (Regulation) Rules, (Union of India) 2011. 39 FCRA (Act and Rules).

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to give the government broad discretionary powers that could be applied in an
arbitrary and capricious manner. In the same manner as the imprecise language
at issue in the Zhechv case, the definition of ‘political nature ’ in the FCRA
appears to be overly b road and could encompass almost all potential activities of
an organization, including those that are allowed and even encouraged by the
ICCPR to exist , such as promoting knowledge of basic rights and participation in
government.

26. Further, s ection 12(4)( f) of the FCRA disqualifies from eligibility to receive foreign
funding all those whose actions may be construed as “likely to affect
prejudicially … the economic interest of the State” or “public interest”. These
terms are not defined in a way that would e nable a CSO to know in advance
whether its activities could reasonably be construed to be in violation of the Act.

B. Legitimate Aim

27. Allowable restrictions on freedom of association are further limited to those which
protect national security or publi c security, public order (ordre public), public
health or morals, or the protection of the rights and freedoms of others. These
legitimate aims must be interpreted strictly. 40

28. States that restrict access to foreign funding for civil society organizations h ave
tended to argue that such restrictions are necessary for national security or to
protect public order. 41 The Human Rights Committee has found that when a
State invokes national security and protection of public order as a reason to
restrict the right to freedom of association, the State party must prove the precise
nature of the threat. 42 Restrictions on the right to freedom of associat ion based
on national security concerns must refer to the specific risks posed by the
association; it is not enough for the State to generally refer to the security
40 U.N. General Assembly, Report of the Special Rapporteur on the Promotion and Protection of
Human Rights and Fundamental Freedoms while Countering Terrorism, at para. 19, U.N. Doc.
A/61/267 (August 16, 2006). 41 See, e.g., Kay Guinane , U.S. Counterterrorism Developments Impacting Charities , 10 Int’l J.
Not -for -Profit L. 1, Dec. 2007, at 3, available at
http://www.icnl.org/research/journal/vol10iss1/special_1.htm ; Mark Sidel, Counterterrorism and
the Enabling Legal and Political Environment for Civil Society: A Comparative Analysis of ‘War on
Terror’ States , 10 Int’l J. Not -for -Profit L. 3, June 2008, at 7 available at
http://www.icnl.org/research/journal/vol10iss3/special_2.htm . 42 Mr. Jeong -Eun Lee v. Republic of Korea, U.N. Human Rights Committee, Communication No.
1119/2002, U. N. Doc. CCPR/C/84/D/1119/2002 at para. 7.3 (2005); See also IACHR Report,
supra note 22, at para. 166.

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situation in the specific area. 43 The national security justification is most likely to
be s een as a legitimate aim when a CS O / NGO endorses 44, either directly or
indirectly, terrorist activities. 45 Similarly, measures intended to prevent crime and
disorder will be deemed to have a legitimate aim where the CSO / NGO calls for
violence, crime, or a complete rejection of democratic principles. 46

29. National security may also justify restrictions on the funding of political parties
participating in elections for public office. In Parti Nationaliste v. France , a
Basque separatist political party in France was prohibited from receiving funding
from foreign sources. The ECtHR found that the restriction on foreign funding of
associations involved in promoting candidates for public office – unlike vague
restrictions on the activities of organization involved in ‘political activities ’ – had
the legitimate aim of preserving national security. 47 Similar ly, the IACHR has
distinguished foreign funding restrictions for political parties or organizations
speaking on behalf of a political party as not falling within the protected standard
discussed above. 48

30. In this case, the FCRA’s stated purpose is ‘to prohibit acceptance and utilization
of foreign contribution or foreign hospitality for any activities detrimental to the
national interest. ’49 This stated purpose is not am ong those specifically
enumerated in the ICCPR . Economic or public interests are neither one of the
enumerated bases for limiting fundamental human right in the ICCPR. National
interest or economic interest of the State is not synonymous with national
43 See Freedom and Democracy Party (ÖZDEP) v. Turkey, App. No. 23885/94, Eur. Ct. H.R.
(1999), paras. 44 -48, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -58372 . See
Parti Nationaliste Basque -Organization Regionale D’Iparralde v. France, App. No. 71251/01, Eur.
Ct. H.R. (2007), para. 47, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -80897 . 44 For the purpose of this analysis the terms NGO and CSO are used interchangeably. 45 Se e Rekvenyi v. Hungary, App. No. 2 5390/94, Eur. Ct. H.R. (1999), para. 30,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -58262 . See Parti Nationaliste
Basque -Or ganization Regionale D’Iparralde v. France, App. No. 71251/01, Eur. Ct. H.R. (2007),
para. 47, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -80897 (The ECtHR f ound
that the restriction on foreign funding of associations involved in promoting candidates for public
office – unlike vague restrictions on the activities of organization involved in ‘political activities’ –
had the legitimate aim of preserving national security). 46 See United Communist Party of Turkey v. Turkey, App. No. 133/1996/752/951, Eur. Ct. H.R.
(1998), para. 26, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -58128 . 47 See Parti Nationaliste Basque -Organization Regionale D’Iparralde v. France, App. No.
71 251/01, Eur. Ct. H.R. (2007), para. 47,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -80897 . 48 IACHR Report, supra note 22, at para 185. 49 See Introduction of the FCRA (Act, 2010).

14

secu rity or public order 50 . The legislation does not clearly define ‘national
interest ’, ‘economic interest of the state’ or ‘public interest’ and appears to allow
the government power to restrict the right to freedom of association for any
number of government purposes beyond ‘national security or public security,
public order (ordre public), public health or morals, or the protection of the rights
and freedoms of others. ’
C. Necessary in a Democratic Society

31. For restrictions to be ‘necessary in a democratic society ’, they must be
proportional. The Human Rights Committee has explained ‘they [the restrictions] must be appropriate to achieve their protective function; they must be the least
intrusive instrument amongst those which might achieve the desired resu lt; and
they must be proportionate to the interest to be protected. ’51 Thus, ‘ the mere
existence of reasonable and objective justifications for limiting the right to
freedom of association is not sufficient ’52. The Human Rights Committee has
clarified that t he State must demonstrate that the restrictions placed on the right
are in fact necessary to avert a real and not only a hypothetical danger 53. In other
words, the State measure must pursue a pressing need, and it must be the least
severe (in range, duratio n, and applicability) option available to the public
authority in meeting that need. 54

32. Applying the same standard, the ECtHR has consistently held that restrictions on
the right that are vague and potentially applicable to an exceedingly large
number of p arties, and that impose onerous and burdensome requirements on
NGOs, are disproportionate to the State’s purported objectives. In addition,
measures that inflict overly severe punitive sanctions on NGOs that fail to comply
with otherwise reasonable legal f ormalities are likely to be disproportionate. 55
Similarly, drastic measures, such as the dissolution of a NGO or barring it from
carrying out its primary activity, can only be proportionate in extreme cases, such
50 See U.N. Doc A/HRC/31/66, para. 31: ‘National, political or government interest is not
synonymous with national security or public order.’ 51 U.N. Human Rights Committee, General Comment No. 27, supra note 33 at para. 14; See
Arslan v. Turkey, App. No. 23462/94, Eur. Ct. H.R. (1999), para. 46,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i= 001 -58271 . 52 Lee v Republic of Korea, Communication No. 1119/2002, Views adopted on 20 July 2005, para
7.2. 53 U.N. Human Rights Committee, Aleksander Belyatsky et al v. Belarus , Communication No.
1296/2004, UN Doc. CCPR/C/90/D/1296/2004, 24 July 2007, para 7.3. 54 See Lee v Republic of Korea, para 7.2. 55 See Tebieti Mühafize Cemiyyeti & Sabir Israfilov v. Azerbaijan, App. No. 3 7083/03, Eur. Ct.
H.R. (2009), para. 63, http://hu doc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -94854 .

15

as when an association incites violence or a dvocates for the destruction of
democracy. 56

33. A complete or blanket ban on access to foreign funding for groups engaged in
activities of a ‘political nature ’ in order to maintain and protect a vague ‘national
interest ’ does not meet the ICCPR ’s proportionality requirement . The same
applies to groups engaged in activities which may be determined contrary to the
‘economic interest of the state’ or ‘public interest’ .

First, a total ban is never the least restrictive measure available to the State.
Second, bans on access to foreign funding can lead to the de facto dissolution of
a CS O, particularly those engaged in activities which may challenge vested
domestic interests. Indeed, such activities are explicitly protected under the
ICCPR , which safegu ards the right of associations and individuals to express
ideas that are unpopular or critical of the government. The Human Rights
Committee has recognized that such free expression of ideas is necessary to
ensure the proper functioning of government and i s therefore ‘a cornerstone of a
democratic society. ’57 The Human Rights Committee has said ‘the reference to a
‘democratic society’ in the context of article 22 indicates, in the Committee’s
opinion, that the existence and operation of associations, including those which
peacefully promote ideas not necessarily favorably viewed by the government or
the majority of the population, is a cornerstone of a democratic society. ’58 Any
restriction that renders this right illusory is not permitted.

34. In this case, the broad objective pursued by the FCRA, the broad discretion
allowed for the government in applying the law, and the measure of a total ban
on access to foreign funding for those CSO s or associations found to be of a
‘political nature ’ or ac ting against economic or national interest by the State is
likely to dis proportionately impact those association s engaged in critical human
rights work, those which address issues of government accountability and good
governance , or represent vulnerable an d minority populations or views .
56 See Refah Partisi (the W elfare Party) v. Turkey, App. Nos. 41340/98, 41342/98, 41343/98 &
41 344/98, Eur. Ct. H.R. (2003), paras. 98 -100 ,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -60936 . 57 Viktor Korneenko et al. v. Belarus, U.N. Human Rights Committee, U.N. Doc.
CCPR/C/88/D/1274/2004 , Communication No. 1274/2004, para. 7.3 (2006). 58 Kungurov, supra note 14, at para. 8.4; Sister Immaculate Joseph and 80 Teaching Sisters of
the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka v. Sri Lanka , U.N.
Human Rights Committee, Communication No. 1249/2004, U.N. Doc. CCPR/C/85/D/1249/20 04
(2005) at para. 7.2.

16

5. Conclusion

35. Despite its reservation to the ICCPR, the Union of India remains obligated to
interpret the right to form an association as defined in its constitution in
conform ity with international law, standards and principles. Under international
law, standards and principles , the right to form an association includes the right
to access resources, including foreign funding. Any restriction on accessing
funding, including foreign funding, is a restriction on the right to freedom of
association and must be evaluated against the legal framework discussed above
to meet the narrowly tailored regime developed by the Human Rights Committee .

36. The Special Rapporteur on the rights to freedom of peaceful assembly and of
association find s that the restrictions of the F oreign Contribution Regulation Act
and R ule s are not in conform ity with international law, principles and standards.
The Foreign Contribution Regulation Act and Regulations appear to contravene
the Union of India’s obligations under the ICCPR to ensure the rights of all under
its jurisdiction t o free association because it imposes a total ban on associations’
access to foreign funding on vaguely defined grounds for a broad purpose not
included in the ICCPR’s enumerated list of legitimate aims.

37. The Special Rapporteur invites all State and non -state actors in the Union of
Ind ia to take this analysis into account and encourages the Union of India to
uphold its obligations under international law.

This analysis is being brought to the attention of the Union of India.

Mr. Maina Kiai (Kenya) was designated by the UN Human Righ ts Council as the
first Special Rapporteur on the rights to freedom of peaceful assembly and of
association in May 2011. Mr. Kiai has been Executive Director of the
International Council on Human Rights Policy, Chair of the Kenya National
Human Rights Comm ission, Africa Director of the International Human Rights
Law Group, and Africa Director of Amnesty International.

The Special Rapporteurs are part of what is known as the Special Procedures of
the Human Rights Council. Special Procedures, the largest bod y of independent
experts in the UN Human Rights system, is the general name of the Council’s
independent fact -finding and monitoring mechanisms that address either specific
country situations or thematic issues in all parts of the world. Special Procedures ’
experts work on a voluntary basis; they are not UN staff and do not receive a
salary for their work. They are independent from any government or organization
and serve in their individual capacity.

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