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FCRA Trouble Facing Missionaries of Charity Will Take a Long Time to Fix

With reasons for MHA refusal of FCRA renewal unclear, there are no guarantees even a fresh application will succeed.

Updated
Law
7 min read
FCRA Trouble Facing Missionaries of Charity Will Take a Long Time to Fix
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Even though the Missionaries of Charity's (MoC) bank accounts were not frozen by the government, their FCRA registration troubles are likely to cause a significant disruption for their charitable work across India.

The central government's refusal to renew their FCRA registration is also likely to take at least a year to try and address, experts who work on such matters told The Quint, and even then, may not be successful.

But what exactly is this fiasco all about? Does this have anything to do with claims of conversion which were recently made against the charity? And what happens next for the organisation that Mother Teresa founded in India, way back in 1950?

WHAT IS THE FCRA ISSUE HERE?

As clarified by the Ministry of Home Affairs, on 25 December 2021, the MoC's request for renewal of their FCRA certification was refused, for "not meeting the eligibility conditions under the FCRA 2010 and Foreign Contribution Regulation Rules (FCRR) 2011."

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The Foreign Contribution Regulation Act (FCRA) was originally enacted in 1976, to regulate inflow of money from abroad into the country. In 2010, the old law was repealed and a new FCRA was enacted.

Under the FCRA, there are certain categories of persons who cannot receive foreign contributions (including cash donations and even gifts of a certain value) under any circumstances: election candidates, the editors or publisher of newspapers, judges, public servants, members of Parliament and state legislatures, and even political parties.

NOTE: In 2017, a retrospective exemption was created for donations received by political parties through Indian subsidiaries of foreign companies (which were supposed to be prohibited as well) to protect the BJP and Congress from falling foul of the law because of the donations they had received from Vedanta.

Organisations which do charitable work can receive foreign contributions if they register with the government or obtain prior permission for receipt of foreign funds.

If granted, an FCRA registration lasts for five years, and can be renewed, rather than having to apply for a fresh registration at its end.

The MoC's FCRA registration was originally set to expire on 31 October 2021. Like many other NGOs, its license was extended till 31 December to give them time for the renewal process to be completed, as a result of COVID disruptions.

While the MHA's statement does not specify the reasons for refusing to renew the MoC's FCRA registration, reports citing MHA sources say that it received "adverse inputs" regarding the charity's activities. The Hindu reported on Tuesday that a senior government official said the renewal was refused due to "audit irregularities."

WHAT ARE THE ELIGIBILITY CONDITIONS FOR FCRA REGISTRATION?

Section 12 of the FCRA 2010 sets out the conditions for grant of FCRA registration. The key conditions are:

  • The applicant must not be fictitious or benami. They must be an actual person/organisation which has either worked in their chosen field or have prepared a reasonable project for the benefit of society.

  • The applicant has not been prosecuted or convicted for indulging in activities aimed at conversion through inducement or force, from one religion to another.

  • The applicant has not been prosecuted or convicted for creating communal tension or disharmony.

  • The applicant is not engaged or likely to engage in sedition or advocate violent methods.

  • The applicant has not been found guilty of diversion or mis-utilisation of funds.

  • Acceptance of foreign contributions by the applicant will not prejudice the sovereignty and integrity of India, or the security, strategic, scientific and economic interests of India, or the public interest, or communal harmony.

  • Acceptance of foreign contributions by the applicant will not lead to incitement of an offence or endanger the life and physical safety of any person.

When deciding whether to renew FCRA registration, the MHA will consider the same conditions. If there has been any violation of the provisions of the FCRA, it can refuse the renewal application even if the conditions are generally fulfilled.

If it decides not to grant a renewal of registration, it is supposed to inform the applicant of the reasons for this.

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SO WHAT IS THE REASON FOR REFUSAL OF MISSIONARIES OF CHARITY'S FCRA RENEWAL?

At this point, it unclear what the exact reason why the MHA has refused to renew the MoC's request to renew their FCRA registration. The reason for doing so will however prove important to what happens next.

If the reason is indeed "audit irregularities", this would not necessarily be insurmountable.

Many NGOs and FCRA registrants have been subjected to detailed audits in recent times, and there are some understandable teething issues from the 2020 amendment made to the FCRA, which prohibited those who have an FCRA registration from transferring foreign-sourced funds to any other persons/organisations.

Previously, if you had an FCRA registration, you could transfer funds you had received to another person/organisation with FCRA registration/prior permission, like a grassroots organisation. In 2020, however, this exception to the general rule of transfers was removed.

Another 2020 amendment which could have led to an audit irregularity is that now every FCRA-registered organisation has to have a specific FCRA account at a State Bank of India branch in Delhi for receiving their funds – foreign funds cannot be received in any other bank account, even if this is notified to the government.

There had also been some problems with domestic donations to the MoC being received in their designated FCRA account.

These irregularities would not necessarily be so serious as to prevent any future registration for the charity, if satisfactory explanations are provided.

However, if the issue is "adverse inputs" as initial reports suggested, this could mean a wider ambit of reasons, which could in turn make the situation far more serious.

Given the condition for FCRA registration on religious conversions, this does raise the possibility that recent complaints against the Missionaries of Charity could also be at play.

On 12 December, 2021, the charity was booked under Gujarat's anti-conversion law over allegations that a shelter home for girls in Vadodara was engaged in religious conversions. The complaint was filed by the District Social Defence Officer who had visited the home along with an official from the local Child Welfare Committee.

The MoC denied the allegations, but the police are investigating the claims.

The Vadodara case began with allegations made by the National Commission for Protection of Child Rights (NCPCR), whose chairman, Priyank Kanoongo claimed to have seen evidence of conversions during a visit to the home in August 2021.

The NCPCR under Kanoongo has previously also made allegations of illegal activity by the MoC, including that its shelter homes in Jharkhand have been involved in child trafficking, for which it had even approached the Supreme Court in February 2020 for a special investigation.

The apex court issued notice to the Centre on the plea but has not passed any order till now.

Although these claims do not necessarily mean a violation of the FCRA conditions, since those require prosecution or conviction, it could be viewed as potentially leading to incitement of an offence or endangering the life of persons, which could then be grounds for refusal to renew the MoC's registration.

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SO, WHAT HAPPENS NEXT?

According to the MHA, it has not received any request from the MoC to review the rejection of the renewal at this time.

The FCRA and its Rules do not specify any procedure per se for any such review. When it comes to registrations and renewals, much of the process is unwritten, people who work on these matters explained to The Quint.

The process for both takes a long time (even the renewal process, with assessment of documentation, takes around nine months), and applicants try to work with the MHA and other ministries to ensure that their applications are accepted and any issues resolved.

Unless there is a political issue at play, most problems can be ironed out if the organisation is genuinely not trying to circumvent the rules.

Of course, when there is a political issue at play, this changes everything. Since coming to power in 2014, the Modi government has cancelled the FCRA registrations of many NGOs, including Greenpeace and Amnesty International.

Trying to challenge such decisions in the courts has not exactly been fruitful either. When the FCRA registration of the Lawyers' Collective, a legal NGO run by reputed senior advocate Indira Jaising and her husband Anand Grover, was cancelled in 2016, they filed an appeal against the government's decision in the Bombay High Court.

However, while the high court did say that no coercive action should be taken against them in connection with a separate (but related) criminal matter arising from these allegations, it has failed to hear or decide on the correctness of cancellation for the last several years.

The refusal to renew a registration is different from a cancellation or even a suspension of an FCRA registration, as it does not require a violation of the FCRA. Unlike refusal of registration or cancellation of license, there is also no specific appeal process under the FCRA.

However, since the government is supposed to provide reasons for this, it does mean that it is possible to file a writ petition in the high court against this decision – though experts advise that this is unlikely to help unless there has been some gross misapplication of the law by the government.

The most logical option for the MoC is therefore likely to be to just file a fresh application for FCRA registration. Although perception-wise a refusal to renew is considered as bad as a cancellation, the consequences are not quite as serious.

If an FCRA registration is cancelled, then the person/organisation cannot make an application for a fresh registration for three years. If a renewal request is rejected, there is no such cooling-off period.

The documentation required for a fresh application by MoC is essentially the same as what they would have had to file for their renewal request, so provided any necessary amendments or corrections are made (if possible), this should not require any particularly onerous additional work.

However, the process is likely to take time. Fresh FCRA registrations generally take at least nine months, if not a year, to be considered (notwithstanding the timeline of three months envisaged under the FCRA, which can of course be extended).

Even one year is not the outer limit. People who work on these matters have seen the process go on even longer, with one of them mentioning a request where the decision came after two years.

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This does not mean the Missionaries of Charity cannot function at all during the time it takes to decide their application. But it does mean that they cannot receive any new funds/donations from abroad, and that they will not be able to utilise the funds already in their FCRA account till then.

This is certainly likely to affect their operations significantly, as Greenpeace and Amnesty International found when their FCRA registrations were cancelled.

Not to mention that there is no guarantee that their application would succeed, even if any audit irregularities are dealt with, thanks to the accusations against them and the increasingly hostile atmosphere being created across the country against the Christian community.

(This story has been updated to correct an error that the Lawyer's Collective FCRA license was cancelled in 2016, not 2018)

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