2005 | india-seminar.com
CONSIDER this remarkable irony: where does the authoritarian Kazakh government turn to for reference material when it wants to clamp down on the freedom of association in Kazakhstan? To the Indian legislation governing the funding of NGOs, of course.1
And why does the following stirring language in the Zimbabwe governments proposed bill to regulate voluntary activity sound so familiar? ‘No local non-governmental organization shall receive any foreign funding or donation to carry out activities involving or including issues of governance’ (emphasis added).2
Because India’s new Foreign Contribution (Management and Control) Bill 2005 (FCMC) uses similarly broad terminology when it seeks to prohibit any organization ‘of a political nature not being a political party’ from receiving foreign contributions.3
The Zimbabwean bill, to its credit, is less ambiguous – it actually defines ‘issues of governance’ as including ‘the promotion and protection of human rights and political governance issues.’4 The FCMC does not deem it necessary to elaborate on such loaded terms as ‘political nature’.
Nobody in the hallowed chambers of the Indian Parliament or in the corridors of India’s ostensibly non-partisan bureaucracy appears to be mortified by the fact that India has been using an Emergency-era statute to ‘regulate’ the freedom of association in this country. Further, few of those whose compatriots raised valid and eloquent questions about the draconian nature of the FCRA during the parliamentary debate on the bill in 1976 – mainly members of the Left parties5 – appear to have noticed that a harsher law is being proposed to replace the FCRA.
From ‘Regulation’ to ‘Control’
There is an element of hypocrisy in the notion that while the Indian economy is liberalizing in every other profitable field and opening up to various forms of foreign investment, there is a clampdown on foreign contributions to NGOs. No credible and committed NGO would dispute the necessity of monitoring finances to ensure that the funds are used for legitimate purposes. Laws like the FCRA, and now the FCMC Bill, however, seek to obstruct the functioning of genuine NGOs by granting the monitoring role to the Ministry of Home Affairs (MHA) rather than the Ministry of Finance, which is the appropriate agency to monitor financial matters. The implications of MHA control were brilliantly illustrated by the 1999 clampdown on 13 organizations that had dared to publicly criticize India’s nuclear testing at Pokhran.6 The paranoia is also evident in the fact that all foreign nationals intending to participate in seminars in India must first obtain clearance from the MHA, and subsequently from other government departments and ministries.7
Is it any wonder, then, that most major inter- national conferences in Asia are being held in Bangkok, Jakarta, and even Beijing, but not in the country that aspires to be a member of the UN Security Council and a significant player in world affairs? The world is one family, goes a Sanskrit saying. Welcome then, to India, the petulant adolescent, scowling at just about everyone.
‘Rationale’
The FCRA, problem child of the Emergency, was brought in with the perverse logic of those times – that of keeping a check on the opposition parties by waving the dreaded ‘foreign hand’ danger flag. Circa 2005, this paranoia persists. The FCRA’s key concern was to restrict foreign funding to ‘organizations of a political nature not being political parties.’ All organizations, including NGOs, seeking to receive foreign funds must therefore either register under the FCRA or get prior permission from the MHA for receipt of such funds.
If the main fear of the central government is that political parties funded by foreign contributions are a threat to sovereignty, why not encompass this concern into existing laws such as the Representation of the People Act 1951 (RPA)? The RPA recognizes political parties and determines the eligibility of candidates for election. It can be amended to restrict foreign funding for organizations that have an electoral platform.
Further, ‘organizations of a political nature not being political parties’ must be clearly defined as organizations that have associations with political parties. Amendments to the RPA should clearly stipulate the grounds upon which an organization of a political nature not being a political party can be proven beyond reasonable doubt to have association to a political party. This is in order to restrict organizations that are fronts for political parties from garnering foreign funding. Alternatively, a tribunal consisting of one High Court judge and other serving or retired judicial officers and legal professionals may be convened to make such determinations on a case-by-case basis.
Extension of the definition to organizations engaged in ‘political’ activity with no proven linkages to political parties will result in an absurdity. Organizations working on advocacy issues such as women’s rights, rights of ethnic minorities, or children’s rights, for example – are essentially engaging in political activity in so far as they challenge the existing power relations within society.
If the central government justifies cautiousness in order to curtail funding to organizations engaged in unlawful political activities, it can notify such organizations under the Unlawful Activities Prevention Act, 1967 and restrict their receipt of foreign contributions.
Financial monitoring of NGOs can be effectively done under existing financial laws regulating money laundering or income tax. NGOs have repeatedly suggested that an amendment to the Foreign Exchange Management Act (FEMA) could bring all foreign exchange transactions under a single uniform civil law for all entities dealing with foreign exchange, and under the purview of the Finance Ministry.
The fact that the receipt of foreign contribution is still viewed as an internal security issue instead of a financial one automatically points to the fact the concerns of the central government have nothing to do with financial probity.
Objections to the Provisions of the FCMC Bill
The FCMC Bill reproduces whole sections of the FCRA and even goes further. Any argument made in favour of one or both of these legislations must have the constitutionally guaranteed freedom of association as their basis.
There are specific concerns relating to the FCMC Bill:
Rules: The rules that would specify the identity of the regulating authority, the grounds on which an organization may be deemed to be of a political nature, and other similar arrangements have yet to be released by the MHA. There is no indication as to when and how the public will have access to these rules and be able to register its concerns.
Decentralization: The ostensible motivation for decentralizing the registration process through five regional offices is to give NGOs and other members of the voluntary sector easier access to a regional office, rather than require all of them to register only in New Delhi. Apart from increasing surveillance and political control of local NGOs, this makes such registration more susceptible to manipulation by local officialdom and local prejudices.
Registering Authority: The Registering Authority (RA) has been left to the central government to specify through the rules. This does not inspire confidence in the authority of the central government or the RA, considering that the monitoring department of the Secretary of the MHA under the FCRA reportedly consists of officials from the Intelligence Bureau.
Other concerns: Section 3(1)(f) introduces an absolute prohibition on organizations of a political nature from receiving foreign funding if they are so declared by the central government under Section 5(1). The central government can exercise arbitrary and undemocratic discretion in determining whether the activities, ideology, programme, or association with a political party, by any organization, warrants its notification. This allows a wide berth to control, hinder or prohibit an organization engaged in advocacy issues that may potentially have bearing on the government’s political interests.
Section 3(1)(g-h) imposes an absolute prohibition on entities engaged in current affairs from receiving foreign contribution. This is paradoxical, considering that in June 2002 the NDA government decided to open up the print media to foreign direct investment (FDI), and in June 2005 the UPA government allowed 20 per cent FDI in private FM radio services.8
Other provisions restrict NGOs from utilizing more than 30 per cent of the foreign contribution for administrative expenses, and grant the Registering Authority the power to determine what constitutes ‘meaningful activity’ and to cancel certification if it is of the opinion that ‘public interest’ compels such cancellation.
How many democracies take such a skewed and paranoid view of the freedom of association? In which other newly liberalizing economy – and ‘emerging’ economic superpower – are financial transactions of an organization probed not by the Finance Ministry but by the ministry in charge of internal affairs? Finally, where else do you find regular and consistent references to the dangers posed by a ‘foreign hand’ in NGO activity, even as defence production, power and telecom emerge as the new sunrise areas for foreign investment?
Not many, unless you count such worthies as Zimbabwe and Kazakhstan as paragons of democratic governance. Arbitrary restrictions on the freedom of association are the hallmark of an authoritarian state. India must ask itself if its laws and policies are to be measured against some of the worst violators of fundamental rights. It must shake off the demons of an era long past, and realize that true national self-confidence comes with giving free rein to the genius of its people.
Ravi Nair
Footnotes:
1. The Kazakh Embassy in New Delhi approached SAHRDC a number of times to ask searching questions about the nature of the Foreign Contribution Regulation Act (FCRA) and the ‘need to regulate’ NGOs. SAHRDC met them a few times but finally told them off saying it didn’t want to assist them in their illiberal endeavour. See also ‘Kazakhstan: Tough bill on NGOs meets with unexpected opposition’ at http://www.eurasianet.org/departments/civilsociety/articles/pp062805.shtml.
2. Non-Governmental Organizations Draft Bill, 2004, available at http://www.civicus.org/new/media/Zimbabwe%20Draft%20 NGO%20and%20Churches%20Bill.doc.
3. The Foreign Contribution (Management and Control) Bill, 2005 (hereafter ‘FCMC Bill’) – Clause 5 sub-section (1).
4. Non-Governmental Organizations Draft Bill, 2004, op.cit.
5. See Rajya Sabha parliamentary debate dated 9 March 1976 on the Foreign Contribution (Regulation) Bill, especially the interventions of Bhupesh Gupta and Kalyan Roy (both Communist Party of India).
6. ‘The purse strings as the noose: Indian NGOs face new challenges’, Human Rights Features-HRF/09/99 (South Asia Human Rights Documentation Centre), October 1999. Available at: http://www.hrdc.net/sahrdc/hrfeatures/HRF09.htm.
7. ‘India restricts NGO meetings’, Human Rights Features-HRF/07/99 (South Asia Human Rights Documentation Centre), September 1999. At http://www.hrdc.net/sahrdc/hrfeatures/HRF07.htm.
8. ‘Govt allows FDI in private FM radio, says no to news’, 1 July 2005. Available at: http://news.webindia123.com/news/showdetails.asp?id=93141&cat=India
Dignity in poverty
SINCE I have lived in a tribal area and have a six decade old association with tribals, my observations are based on real life experiences.
It would be relevant to ask if the tribals themselves, even remotely, share the belief of those who tout the jargon of a ‘tribal-forest symbiosis’. Even if partially true earlier, this is no longer valid as the modern-day tribal and his aspirations have undergone a major change, much in keeping with what has happened to his other rural and urban counterparts with whom he interacts on a daily basis.
Under the circumstances, it is ironic that the promoters of the Scheduled Tribes (Recognition of Forest Rights) bill, who claim to have the interest of the tribals at heart, even after 58 years of India’s independence, can only think of providing a ‘dignified’ life to the tribals by forcing them to continue to depend on forests, live within them, while the rest of India moves on.
Tribals may have once lived in harmony with nature when their numbers were few and the forest assets much larger. But in today’s realities, can the tribals manage the forests and wildlife and ensure the integrity and sustainability of the existing biodiversity? Much as we may like to romanticize ancient tribal wisdom, modern day tribal values contradict this image. Even if this contention was not entirely correct, the tribal population today is so large that the fast shrinking forests would not be able to support the concept of ‘sustainable utilization’.
I joined the Bihar state administration as a forester in 1967 when the state was going through changes in forest management. The Zamindari Abolition Act had been enforced and the forests under the management of zamindars were taken over by the government. The state had to promulgate an act to possess such forests and the Bihar Protected Forests Act was born in the early 1950s. During this period another land reform movement was underway in the country, where landlords donated their excess land to Vinoba Bhave, who had propounded the Bhoodan movement based on the theory of equity, i.e., giving surplus land to the landless. This was the background.
The revenue department of the state government appointed forest settlement offices in many districts with powers of the Collector to decide and finalize land ownership. It took nearly 15 years to finalize the documents, and forest settlement orders were issued in the mid-sixties. Originally, over 60,000 sq kms of land was notified under the BPF Act while less than 32,000 sq kms was notified under the Indian Forest Act. The total forest area included the forests of some districts, which were notified as reserves in the third quarter of the 19th century.
Forests, not covered by Indian Forests Act, remained with the revenue department as common property land to meet the requirement of the fringe dwellers for timber, firewood and grazing. Forests that were notified under the Indian Forest Act also recorded customary rights that are valid even today. In a rights burdened forest, the rights of the villagers were given priority and it was the village committee which distributed the rights, not the forest department. Such forests are no longer capable of meeting the needs of the villagers. The human and cattle populations have grown three-fold in the last four decades. Exploitation by non-rights holders, illicit felling by vested interests in collusion with the forest staff and encroachment of some forests areas have substantially degraded the forest land.
To continue with the 1967 situation, the United Front government decided to denotify any land that had signs of having been ploughed and gave it to the poor forest fringe dwellers. The area thus denotified was over 2000 sq kms.
Over 30,000 sq kms of common property lands with various density of trees disappeared by the late 1970s. The timber mafia in the name of ‘tenants timber’ extracted thousands of truckloads of forest and the land was cleared by the land mafia. No tribal benefited by this act. There are documents suggesting that tribals who died 20 years earlier were given possession of such land and the trees standing on those lands were felled on the application filed by the ‘dead’ person. I have proof that even after nearly 40 years of the denotification of forests by the United Front government, the lands have not been settled.
Bihar has a history of experimenting with activities within forests. In 1959, the state government decided to give ‘rights burdened forests’ to the village committees in the district of Ranchi. Within 10 years all the trees disappeared and the land was brought under the plough. Finally, such lands were denotified and the revenue department settled most of the lands with non-cultivating petty business community who leased them out to ex-landlords.
The government did not acquire the forest areas of Rajmahal hills when the land ceiling act was promulgated. The tribes called Sauriya Paharias were left with big chunks of land. These hills produced several tons of village mango and custard apple, which were marketed to the tea gardens in Assam and Kolkata by train. This was the scene 25 years ago. Today, such lands have been converted into boulder mines and one sees only stone crushers. The landowners whose lot was improving with more orchards of mango and other fruit trees are back again on the hill top, trying to sustain themselves with the meagre amounts that the contractors dole out. These are some examples that can be verified from the records.
Before dealing with the provisions of the proposed bill, case studies from the state of Bihar must be noted. Many may ask, why Bihar? For two reasons: first, I was a Bihar cadre officer, and second, Bihar initiated the Zamindari Abolition Act.
1950-1965
1. The Bihar Protected Forest Act was promulgated to possess acquired forests of landlords after the Zamindari Abolition Act came into being.
2. Approximately 60,000 sq kms of land was notified.
3. Process of notification under Indian Forest Act started: (a) Forest Settlement Officers appointed in every district; FSOs appointed in subdivisions where forest areas were large. (b) The revenue department was the parent department dealing with the settlement procedures. (c) Claims of ownership, rights and concessions were heard and then the forests of the area were notified with boundaries shown in the village map (cadastral sheet).
4. The state government issued final notifications covering an area of approximately 32,000 sq kms.
5. After settling the claims, approximately 25,000 sq kms that remained with the revenue department was notified under the BPF Act.
The question is: where is the huge landmass that was to be used as common property land? Trees were not to be cut, though villagers enjoyed the right to sustainably use them, including for grazing. The trees were removed and the land settled. Not even 10% of such land has been settled with tribals.
1965-1970
6. Forest settlement orders issued. Recorded rights and concessions were transferred to the block level revenue records.
7. The United Front government in Bihar released over 2,000 sq kms of notified forest lands for the poorer section of the society by 1968. In the last few decades, no tribal has benefited from this land.
It is incorrect to suggest that the tribals would be happy if they got land. Basically, they are not agriculturalists. They grow some crops during the monsoon which normally sustains them for nearly six months; in the remaining months they look for jobs in the tea gardens, brick kilns, agricultural lands in Punjab and Haryana, or else they collect forest produce for their own use/sale/barter. They collect roots, shoots, flowers and fruits from the forests. During the peak of summer many tribal families survive on mahua flowers, tendu fruit, wild mangoes and jackfruit as they have no rice stored in their homes. They go into the forest to fetch firewood, head-loads of which are sold from door to door in the nearest urban area. More than 1000 tribal women travel by train, bringing firewood from the forests to the capital, Ranchi. These women sleep on the platform and after selling the wood the next morning, return to their village. The men go into the forests and cut trees. I have observed this reality for over six decades. The only difference is that they now have to travel 10 to 12 kms every day to reach a forest area.
Most tribal families practice the same lifestyle barring a few who have the privilege of educating their children in the nearby mission school. The educated children never go back to their native village to live the same life which this bill envisages to provide them with once it is enacted.
There is no doubt that tribals depend on forests for much of their livelihood. They worship groups of trees, drink and dance perhaps to swallow the misery of a hellish life, one that is an epitome of pain, humiliation, sorrow and suffering. These tribals classified in the schedule of the constitution have seen their lives being experimented on, in more ways than one.
The tribal sub-plan has pumped in enormous sums of money in the last few decades. According to one estimate, if the money allotted in the tribal sub-plan area of Chhotanagpur and Santhal Parganas was distributed to individual tribals in cash, each tribal would have been a millionaire!
According to the draft bill, two and a half hectares of land will be given to those landless tribals who had encroached the forests prior to 1980, with the objective of legalizing encroachment. However, forests have been encroached not only by the landless; therefore the two and a half hectare limitation is baseless unless the category of landless tribals is established. Second, who has estimated that this land holding will make them self-sustainable? Many families have more than two hectares of land but are still dependent on forests for their livelihood. How does a non-agriculturalist tribe take to tilling the land?
Human rights activists have raised some other questions too.
Sixty per cent of forests under forest department control is degraded, but admittedly 40% are not, and the land remains intact. Moreover, 60% of this degraded forest land can be regenerated. On the other hand, as stated earlier, not even an acre of forest land that was left as buffer and common property exists today. This fact is conveniently overlooked as the bureaucracy has committed the crime. It is true that 3.3 million hectares of forests have been converted into monoculture plantations. There appears to be no problem even if two million hectare are given to tribals. On the other hand, it must be admitted that such land will only provide a subsistence living and not a dignified one.
Why was 4.238 million hectares of forest land diverted in 1957-81 for mining and hydroelectric project, displacing over 20 million tribal families? The value of the forests was never assessed, and tribal land was acquired for a pittance. These tribals had no option but to encroach on forest land. How can the bill justify both compensation and encroachment?
There are countless examples where grasslands were converted into plantations. Normally, quick growing species encourage more grass. In any case, fast growing species and their commercial exploitation was the policy. It was not only the grasslands, but even miscellaneous natural forests that were converted into plantations. In many cases this was done out of ignorance and as part of government policy of commercial exploitation of forests. Foresters have to take responsibility for their inability to convince governments to follow the right path.
The bill does not compensate for the failure on the development and welfare front. This is why extremism is growing in tribal pockets. This bill cannot compensate for the millions of rupees spent in the name of tribal development of which there is no accountability. Some of it has definitely gone to ‘consultants’ who have written copious project reports on tribal welfare!
If a state fails to follow the procedure of settlement, the forest department can be blamed. A glaring example is of Shivpuri district of Madhya Pradesh, where huge encroachments took place by shifting boundary pillars and doling out the area to miners.
The existing laws contain enough guarantees for not only tribals but all forest fringe dwellers, if only the governments decide to implement them in right earnest. No one claims that the local communities are enemies of the forest. But it is a fact that the land mafia, forest mafia, mining and industrial lobby do purchase fringe dwellers and forest staff to promote illegal activities.
Therefore, it is essential that the so-called guardians of society suggest alternative solutions that do not bring added misery to the people. Cultivation rights will do no good to a handful of people. The tribals must be given an equal opportunity for a dignified life.
P.K. Sen
Source: http://www.india-seminar.com/2005/553/553%20comment.htm