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BRIEFING NOTES - India

Spokesperson for the UN High Commissioner for Human Rights: Rupert Colville

Location: Geneva

Date: 20 October 2020

India

The UN High Commissioner for Human Rights Michelle Bachelet is today appealing to the Government of India to safeguard the rights of human rights defenders and NGOs. She has expressed regret at the tightening of space for NGOs, including by the application of vaguely worded laws that restrict foreign funding and are increasingly being used to stifle civil society voices. She draws attention to three different laws that we perceive to be problematic.

The Foreign Contribution Regulation Act (FCRA) is vaguely worded and overbroad in its objective. The Act prohibits the receipt of foreign funds “for any activities prejudicial to the public interest.”

The Act, which was adopted in 2010 and was amended last month, has had a detrimental impact on the right to freedom of association and expression of human rights NGOs, and as a result on their ability to serve as effective advocates to protect and promote human rights in India. It is expected that the new amendments will create even more administrative and practical hurdles for such advocacy-based NGOs. Most recently, Amnesty International was compelled to close its offices in India after its bank accounts were frozen over alleged violation of the FCRA.

This Act has been invoked over the years to justify an array of highly intrusive measures, ranging from official raids on NGO offices and freezing of bank accounts, to suspension or cancellation of registration, including of civil society organizations that have engaged with UN human rights bodies.

The High Commissioner is concerned that such actions, based on the grounds of vaguely defined ‘public interest,’ leave this law open to abuse, and that it is indeed actually being used to deter or punish NGOs for human rights reporting and advocacy that the authorities perceive as critical in nature. Constructive criticism is the lifeblood of democracy. Even if the authorities find it uncomfortable, it should never be criminalized or outlawed in this way.

The UN 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 show the specific nature of the threat or risks posed. Its responses must be limited to ones that are necessary and proportionate.

Activists and human rights defenders have also come under mounting pressure in recent months, particularly because of their engagement in mass protests against the Citizenship Amendment Act that took place across the country earlier this year. More than 1,500 people have reportedly been arrested in relation to the protests, with many charged under the Unlawful Activities Prevention Act -- a law which has also been widely criticized for its lack of conformity with international human rights standards.

Charges have also been filed under this law against a number of individuals in connection with demonstrations that date back to 2018. Most recently, the 83-year-old Catholic priest Stan Swamy, a long-standing activist engaged in defending the rights of marginalized groups, was charged and reportedly remains in detention, despite his poor health.

The High Commissioner is urging the Government of India to ensure that no one else is detained for exercising their rights to freedom of expression and peaceful assembly. She also calls on the authorities to carefully review the FCRA for its compliance with international human rights standards and to release people charged under the Unlawful Activities Prevention Act for simply exercising basic human rights that India is obligated to protect.

The High Commissioner does however note that earlier this year, India’s Supreme Court significantly narrowed the definition of what constitutes a “political activity” under the FCRA, which is a welcome development.

See the High Commissioner’s statement here

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