The prime minister is on a state visit to the United States. As part of the visit, he will sign an agreement for the purchase of ‘predator drones’. The US will benefit from the sales, and the Indian prime minister from the perception amongst his constituency that in becoming ‘America’s bulwark against China’, he is transforming India into an enviable ‘security state’.
The Washington editorials note with concern the ‘democratic backsliding’ in India, but also indicate that it offers valuable opportunities to the US military-industrial complex by being open to constant ‘military hardware upgradation’, in apparent readiness to counterbalance China on behalf of the US. They also suggest that India provides a good alternative market in the “China plus one strategy” now favoured by Western multinationals, where they wish to be no more reliant on China alone for markets and for global supply chains. Thus, the prime minister would be accorded all protocol, but also the additional graces that every good salesperson reserves for their best buyers.
In a parallel universe
The Ministry of Home Affairs (Foreigners-II Division) has written to the Centre for Equity Studies saying that its registration under the Foreign Contribution (Regulation) Act, 2010 (FCRA), which allowed it to accept foreign contributions, now stands suspended (for the duration of the pendency of the enquiry into alleged breaches of the conditions of the permission). And that is that.
The FCRA is a badly drafted law, with vague and overbroad provisions which lend themselves to abuse of process. Conceptually too, it seeks to shield only some kinds of political, social and academic work from foreign influence, and not others. It is arbitrary in that regard.
It is based on rather odd, yet familiar premises. Its ‘Objects and Reasons’ describe its purpose as regulating the acceptance and utilisation of foreign contributions and foreign hospitality, so as to prevent any onslaught on India’s sovereignty, or on its democratic ideals. The FCRA draftsmen probably imagined cloaked mercenaries, or corruptible public figures, who might be recruited as agents by foreign agencies, or even religious fundamentalists, but never took into account big tech/big business smiling into the camera, together with the visiting prime minister, wanting concessions in law and ‘conducive business environments’.
The Supreme Court has held that the country’s economic policy is solely within the executive’s domain and not a matter for judicial review. And so it stands. Although, in our political culture, the country’s development indices are never assessed against foreign hospitality, and against benefits that accrued to the ‘foreign sources’, in the manner that they are scrutinised under the FCRA.
Also read: Trampling on the Rights of Rights Activists
Those who drafted the Act were probably mindful of our own celebrated ‘liberalisation of the economy’, which came in the wake of a ‘structural adjustment programme’ – loan terms that dictated wide-ranging reforms across sectors, including even white papers on judicial reforms. Admittedly, those were structural reforms adopted by an elected government, but without any referendum or political consensus, and most definitely prodded along by the bank that promised money. For good measure, Section 2(j) of the FCRA excludes contributions coming from the World Bank, as foreign or tainted source.
It may well be argued that such foreign influence in international trade and commerce is quite unavoidable (or good even, from the perspective of reforms) given the exigencies of global geopolitics. However, there is no escaping the fact that ‘foreign influence’ in the form of governments, international agencies, lobbyists, banks and multinationals is absolutely central to policies that have an impact across sectors. In such circumstances, there is no unreasonableness in seeking financial support by those who oppose those policies on various grounds. Political funds are central to all political activity, and they usually disproportionately tend towards mainstream and majoritarian politics.
Lobbyists and influencers often expend considerable resources on slander campaigns that assume dishonesty of purpose in peoples’ politics that are funded through donations. It is implied that those who act on the basis of personal convictions should not accept financial help for their work. But, of course, such personal and political convictions need to form solidarities, and to also find financial support that is ethically sourced.
There is a strong case in favour of internationalism. One might even argue, a tad more cynically, that in a global interconnected world, isolationism is not even a realistic option. However, it is not entirely clear how the FCRA is able to distinguish between ‘kosher’ market driven influences, and apparently ‘non-kosher’ people-centred action, which needs scrutiny and regulation.
Realpolitik, development and ‘bad politics’
I have written elsewhere about this wonderful book on political philosophy (by Jonathan Wolff) that defines politics as comprising of two questions: “Who gets what” and “says who?”
Political philosophy holds that ‘who gets what’, and ‘in what measure’ is decided by those who retain political power. Politics of equity is the consciousness that the powers that be are not fairly distributing rights and resources, and then trying to spread that consciousness through discursive activity and mobilization. On the other hand, statist politics is the business of obstructing change, and freezing of status quo, by dismissing ‘politics of equity’ as ‘foreign funded’, and anti-national.
Thus the seemingly ‘developmental’ and ‘public policy’ actions like ‘investment hunting’ and structural adjustment are deeply political acts too, for they have a bearing on “who gets what” (trickle down effect rather than welfarism; or ad hoc employment as opposed to permanent contracts), and also on “says who?” (says IMF, or says Mr Big Business). They are also deeply political because such actions are always at odds with another kind of politics, one that is demanding newer ways of redistribution of resources. It is the kind of politics of equity that I have known the eponymous Centre for Equity Studies to support.
Also read: Ritwick Dutta’s Many ‘Crimes’ and the FCRA’s Role in Tackling Them All
The FCRA primarily targets the politics of the marginalised, while exempting the politics of status quo from scrutiny, calling it state policy, or development strategy.
Although FCRA bars political parties from receiving foreign contributions, yet recent amendments in the Finance Act of 2016 and 2018, as well as amendments to the Companies Act, make provisions for foreign companies to channel their contributions through Indian subsidiaries. The electoral bonds scheme also has sufficient gaps for foreign entities to channel to political parties that matter, thus again limiting FCRA’s scrutiny to those who work on the margins.
In another time perhaps, the FCRA may have proscribed diasporic funding to religious fundamentalist groups in India for their outreach and pedagogic work around majoritarian ideas. But as the drastic change in the Indian political landscape has shown, such proscription even if theoretically possible in law was never effectively implemented.
The FCRA seems to only regulate those whose politics of equity runs contrary to majoritarian, and mainstream politics, by painting them as political disruptors. Unfortunately for such ‘disruptors’, law operates only in silos. If they are the subjects of an extreme legal scrutiny, it doesn’t help their case in law to say that other social and political actors have been excluded from such examination and regulation.
The FCRA is manifestly arbitrary
Farcically, Section 3 proscribes foreign contributions to ‘correspondent, columnist, cartoonist, editor, owner, printer, or publisher of a registered newspaper’, or by an ‘association or company engaged in the production and broadcast of audio-visual news, or current affairs programmes’. Presumably it is done to regulate ‘foreign influence’ in forming public opinion, or disseminating misinformation. However, the current regime allows between 26% to 100% foreign direct investment in different kinds of news portals. Thus there is effective editorial control over news content and analysis by foreign corporations.
It is under this Section (amongst others) that CES is found to be preliminarily guilty. The order alleges that its trustee Harsh Mander writes columns! Independently, and also in collaboration with other beneficiaries of the FCRA account of CES. The order also states that Mander himself has received payments as professional receipts from the same FCRA account.
Harsh Mander.
Section 3 is per se arbitrary, since Indian news portals can now legally be co-owned by foreign entities, but additionally this radical interpretation whereby anyone who has ever written a column (as opposed to a professional columnist, who has accepted foreign contributions to write those columns) is barred from accepting donations for any other purpose is disingenuous. Technically, it might even include an entry in your school yearbook, which now proscribes you from receiving any foreign contributions.
FCRA has, in the classic legal mode, always sought to preserve political status quo, but the current government often defines the limits of political action, not only in terms of avoiding broad ruptures in status quo, but very assertively in not allowing any criticism or dissent of its own ideology or actions. The ambiguities in the Act allow for such abuse of process. ‘Foreign hospitality’ for example is defined thus: “any offer […] made in cash or in kind by a foreign source for providing a person with the costs of travel to any foreign country or territory or with free boarding, lodging, transport or medical treatment”. Any old columnist, who has travelled abroad and relied on the kindness of friends and acquaintances for free lodgings, might be guilty of a breach.
Also read: Explained: Amendments to FCRA Law That the Supreme Court Has Upheld
The Act, strangely, specifically excludes from its purview payments received as ‘wages’ or ‘salaries’, or as ‘remuneration’ for tasks done, or monies received in the course of international trade. Thus, a donee who accepts contributions for political action is under scrutiny, and requires permission to accept the funds, but a salaried lobbyist, or an executive employed by a multinational corporation, bidding for mining leases, etc. is not covered under the Act.
To be a conscientious objector
The allegations against the CES, and the consequent scrutiny, are with regard to political acts of dissent. Of writing of columns, and of criticism, of keeping records, and of archiving cruelties. Yet, it is also an important tactic of power to not let the ‘politics of equity’ be recognised as such. They would describe it variously as anti-nationalism, or anti-government conspiracies, but at the same time not grant the political actor the dignity of being recognized as a conscientious objector, or a political prisoner, in law. Rather, law creates tangential offences, each of which emanates from the state’s own impulse to manage dissent. In the event, political dissenters have to bear the additional ignominy of mundane accusations of fraud, and petty pilfering and profiteering. That is the meanest cut.
Shahrukh Alam is a lawyer who practices in Delhi.
