In what may soon become a major embarrassment for the government, it appears that the Union Home Ministry has shown stark arbitrariness in canceling the FCRA licences of several, if not all, NGOs.
The ministry had recently announced that over 11,000 NGOs had lost their foreign funding registration because they did not apply for renewal of their license in time. According to the ministry, 11,319 NGOs had not applied for renewal of registration by the 30 June deadline this year and the validity of their registration was "deemed expired from 1 November 2016".
Those who applied for renewal have also been refused licenses in an arbitrary manner.
At least two such NGOs shared with Catch email conversations between their officials and the FCRA department in the ministry.
The conversations clearly document the arbitrariness in refusing to grant renewal of their licenses. An email to one of these NGOs from 'firstname.lastname@example.org' says, "Your application has been refused due to following reasons: Your application for renewal is refused". The email indicated that the department gave no reason for non-renewal and merely repeated a robotic reply.
Another email to the second NGO from the same email-id - 'email@example.com' - says, "On the basis of field agency report, the competent authority has decided to refuse your application for renewal."
This is only a more verbose version of the same response and indicated, again, refusal by the ministry present give a legitimate reason.
Understandably, the NGOs are perplexed and at a loss in trying to understand why this action has been initiated against them. In these circumstances, only one explanation emerges - a witch-hunt - like the one carried out against Greenpeace and Amnesty International previously.
Home Ministry has gone 'very wrong': Legal expert
The NGOs have sought legal advice in the matter and the word that they have received is encouraging for them and damaging for the government.
A Supreme Court advocate clearly said that the Home Ministry "has gone very wrong" in issuing these last-minute refusals and that the actions "betray, once again, its utter lack of understanding of the Scheme and provisions of FCRA, 2010."
Cancellation and renewal of registration, according to the advocate, are two separate mechanisms under Section 14 and Section 16 of the Act, with each of them being "mutually exclusive, comprehensive and exhaustive in itself". Simply put, the government can not use refusal of renewal as cancellation of registration.
"The mechanism of renewal given under Section 16 is meant to accrue once every five years at the end of the tenure of any registrant and is also meant to be comparatively simpler, more straightforward and provide a narrow area of discretion to the Central Government. The underlying logic is that the Central Government had the power to cancel registration at anytime during the five years. If it has not done so, then all proper applicants are entitled to a quick, speedy and smooth renewal."
Due inquiry must establish reasons for cancellation
The SC advocate has further explained that after this renewal, the government will have to again initiate cancellation proceedings if the reasons given are found to exist after inquiry. For a cancellation, it is imperative for the government to take a few actions before taking that call -
1. Hold an inquiry.
2. Be satisfied after such inquiry that one of the 5 available grounds for cancellation exists.
3. Give a reasonable opportunity of being heard to the person concerned.
4. Cancellation by written order.
This power of cancellation remains available to the government throughout the five-year tenure of an organisation's registration and can be exercised at any time.
Further, once a registered entity gets its certificate renewed within six months before its expiry and applies for a renewal in the prescribed format and with the necessary fee, the onus shifts to the government.
It becomes obligatory for the government to compulsorily renew the registration of everyone who has properly applied. Ordinarily, it is required to do so within 90 days, but it gets a little elbow room -
1. It can impose such terms and conditions at the time of renewal as it deems fit.
2. It can delay the renewal beyond 90 days by giving reasons for such delay.
3. It can refuse to renew if an applicant has violated the provisions of the FCRA, 2010 or the rules thereunder.
Since the government can refuse renewal for only one reason and is otherwise is bound to renew registration, the government cannot simply let a registration lapse by not taking any decision on its renewal till the date of expiry.
Further, if the only available reason for refusal of renewal does not exist, then upon expiry of registration, the registration must be deemed to have been renewed.
What this legal advice indicates that if the aggrieved NGOs decide to take the government to court over the issue, the government is quite likely to find itself on thin ice.
It also proves what many activists have been claiming for a long time, that the Modi government is hell bent upon implementing an agenda of stifling the civil society.
It can also be looked at in continuance with the attempts to muzzle media through the arbitrary ban on NDTV, that was quickly rescinded following protests. Looks like this is another controversy headed the government's way.