The right to protest, the legitimacy of protests as a democratic tool, as well as the funding of protests have all been subjects of vociferous debate over the last few months. Recently, the Supreme Court, in an unrelated (and rather old) case, pronounced a judgment that should give much-needed comfort to democratic protestors merely fighting for their, or their community’s, rights.
The Petition by Indian Social Action Forum, a Delhi-based NGO, challenged the provisions of the Foreign Contributions (Regulation) Act, 2010 that banned organisations of political nature from receiving funds from abroad. This included organisations of farm workers, students, etc, which are not directly political, but whose objectives aim to advance political interests, or organisations which habitually engages in or employ common methods of political action, such as ‘bandh’ or ‘hartal’ for instance. This, it was argued, directly contradicts Article 19(1)(c) which guarantees the right to form associations or unions as a Fundamental Right (Admittedly, this does not extend to a right to receive foreign funds).
The organisations that were targeted under these provisions were mostly grassroots organisations such as those protesting the Kudankulam nuclear power project, as well as other activist organisations such as Greenpeace.
The Supreme Court did not weigh on whether a Fundamental Right was being violated, but effectively read down the provisions to hold that any organisation which supports the cause of a group of citizens agitating for rights without a political goal or objective cannot be penalised as an organisation of political nature. The court also made it clear that such exemptions will not apply to organisations that are used for channelling foreign funds by political parties.
However, even as the NGOs celebrate, there are significant problems with the half-hearted nature of the judgment. First, as we have been seeing in several recent judgments, the court does not seem to be impressed by the argument that vagueness in the law makes it prone to be misused by the government, and is, therefore, a sufficient ground to strike it down. In fact, one recalls the observation in the Aadhaar judgment accepting the government’s contention that no State would be interested in the mass surveillance of 1.2 billion people in the country, when every indication is to the contrary.
Time and again, the court allows the government the benefit of the doubt with regards to the possible misuse of power, leaving the citizen without any recourse against the executive’s machinations.
How does vagueness work against the citizen? When laws are framed by Parliament, they are ideally subjected to public debate, as a result of which problematic provisions are weaned out. When the law is vague (in this case, the Act gave the government the power to frame rules whereby an organisation can be declared to have political objectives — without defining what a ‘political objective’ is), the executive essentially circumvents such parliamentary scrutiny by filling the void. This then has the dual effect of leaving the citizen second guessing what his rights actually are, while constantly living under the shadow of punitive action by the government.
Second, the court completely side-stepped the question of violation of Fundamental Rights (on the ground that the petitioner organisation, not being a ‘citizen’ could not claim Fundamental Rights u/Art. 19). Having said that, both the Constitution as well as international law (the International Covenant on Civil and Political Rights) grant the freedom of assembly and association.
However, can you exercise a right without the resources to do so? It was the argument of the petitioners that restriction on funding makes the right to association nugatory. Often, the restrictions were used not only to cut off funding, and thereby sustenance for organisations, but also to mire them in exhausting litigation with the government.
Where does this leave us in the current spate of protests seen around us? First, the court makes a welcome demarcation between politically-motivated action and that of voluntary organisations which have absolutely no connection with party politics. This should, one hopes, take the sting out of the government’s fashion of labelling all dissent as politically-motivated, on the ground that it is aimed at bringing down the government.
Meanwhile, foreign funding will continue to be looked upon with suspicion for hidden political motives. Perhaps the government will have to establish clear linkages before tarnishing a recipient organisation.
(Disclaimer: The author assisted the petitioner's counsel in the early stages of this case).
Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal.
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