Targeting of Lawyers and Rights Defenders in India: Statement

The New York City Bar Association (the “Association”) is deeply concerned by the Indian government’s ongoing campaign of harassment and intimidation used to target lawyers and other human rights defenders, which has intensified over the last several years.  The recent actions against Lawyers Collective and its founders, Supreme Court of India advocates Anand Grover and Indira Jaising, highlight this distressing trend.

The Association is an independent, nongovernmental organization of over 24,000 lawyers, judges, law professors and government officials from throughout the United States and over 50 other countries.  Throughout its nearly 150-year history, the Association has consistently maintained that respect for the rule of law is essential in all jurisdictions and has a long history of investigating and reporting on human rights concerns around the world, including within the United States, through the work of its International Human Rights Committee, its Task Force on the Independence of Lawyers and Judges, and other Association committees.  Most recently, the Association has voiced concerns relating to the targeting and oppression of lawyers in Iran,[1] the United Kingdom,[2] Tanzania,[3] and Turkey,[4] among others.  

We are troubled by reports that lawyers in India are increasingly confronting an atmosphere of intimidation for the legitimate performance of their professional duties.  Such reports are particularly disquieting for the international community in light of India’s status as the world’s largest democracy, with a robust constitutional tradition of free speech and press, combined with entrenched democratic and civil society institutions serving a pluralistic and multicultural populace.   

Mr. Grover and Ms. Jaising are well-respected, senior advocates with extensive experience as public service lawyers and human rights defenders in India and abroad.[5]  Mr. Grover was the United Nations Special Rapporteur on the Right to Health from 2008 to 2014. Ms. Jaising served as an Additional Solicitor General of India between 2009 and 2014 and was also a member of the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) between 2009 and 2012.  Together they also established a prominent human rights and public interest organization, Lawyers Collective, which is based in New Delhi and maintains its registered office in Mumbai.  Since its founding in 1981, Lawyers Collective has a proven track record in human rights advocacy, legal aid, and litigation on behalf of Indian society’s most marginalized communities.[6]  Crucially, Lawyers Collective and its representatives frequently undertake work involving cases against senior politicians, including current and former officials of the Indian government.[7]

Background on Actions Against Lawyers Collective

Since at least 2016, the Indian government has used the Foreign Contributions Regulation Act (“FCRA”) to pursue Lawyers Collective, based on alleged discrepancies in foreign contributions disclosed in its filings with the Indian Ministry of Home Affairs (“MHA”). 

The FCRA’s stated objective is to “regulate the acceptance and utilisation of foreign contribution or foreign hospitality by certain individuals or associations or companies to prohibit acceptance and utilisation of foreign contribution or foreign hospitality for any activities detrimental to the national interest and for matters connected therewith or incidental thereto.”[8] Under the FCRA, all non-governmental entities must register with the Indian government in order to legally receive foreign funding.[9]  Therefore, numerous civil society organizations in India, especially human rights organizations, require government licensing to obtain foreign contributions that are often essential to providing ongoing services..[10] 

The Indian government has canceled approximately 19,000 NGO licenses under the FCRA.[11] A recent report found that foreign funding of civil society has plunged more than 40% since Modi’s election in 2014.[12] In several cases, revocation was based on vague and overbroad assertions of “national security” and “public interest”— raising concerns that the FCRA may be weaponized to stiffle dissent and target groups deemed inimical to governmental interests.[13]  Multiple United Nations Special Rapporteurs have called upon the Indian government to repeal or substantially amend the FCRA, and have decried the FCRA’s use to “silence organizations involved in advocating civil, political, economic, social, environmental or cultural priorities, which may differ from those backed by the Government.”[14]

In 2016, the Indian government suspended Lawyers Collective’s license for six-months alleging use of foreign funds for activities that violated the FCRA, as described in an MHA inspection report (the “2016 MHA FCRA Report”).[15] The MHA declined to renew Lawyers Collective’s FCRA license, and then on November 27, 2016, they permanently revoked the license based on the alleged findings in the 2016 MHA FCRA Report.  The MHA also directed that all of the NGO’s bank accounts be frozen and its assets attached by the Charity Commissioner.[16]  

In 2017, Lawyers Collective challenged these actions before the Bombay High Court, which granted interim relief by unfreezing the NGO’s domestic and non-FCRA accounts and putting a hold on the government’s direction to the Charity Commissioner — allowing Lawyers Collective to resume its legal work during the pendency of the case.[17]  Specifically, Justice M.S. Sonak found that while the FCRA authorized the Indian government to “regulate or, even prevent the acceptance of foreign funds by an association, the [FCRA] did not provide for a government to stifle the very functioning of individuals or associations.”[18]  Justice Sonak also observed that some of the allegations included in the 2016 MHA FCRA Report were “quite vague,” and because the High Court would ultimately determine the legality and propriety of the MHA’s decisions, it would not be appropriate to halt the NGO’s functioning in the interim.[19]  The Association understands that this case is still pending before the Bombay High Court. 

Despite this, the Indian government began taking additional punitive actions against Lawyers Collective and on June 13, 2019, the Central Bureau of Investigation (CBI) filed a criminal case against Lawyers Collective, Mr. Grover, and other representatives under a wide range of criminal charges,[20] which are entirely predicated on the findings in the 2016 MHA FCRA Report and the subject of the ongoing appeal before the High Court. 

Acting on complaints, India’s National Human Rights Commission (the “NHRC”) issued a notice to the Director of the CBI requesting a progress report on its investigation.[21]  The notice highlighted concerns that the criminal charges filed against Lawyers Collective were “solely based on a report of the Ministry of Home Affairs pertaining to the year January, 2016 and [that] there has been no change in circumstances or material on record since 2016[.]”[22]  While acknowledging that the subject matter of the investigation was within the CBI’s remit, the notice also affirmed that the NHRC was “empowered under [India’s] Protection of Human Rights Act, 1993 to examine the issue to make it non-discriminatory and to avoid arbitrariness.” [23]   

Even so on July 11, 2019, the CBI carried out highly publicized raids on the offices of Lawyers Collective and the residence and offices of Mr. Grover and Ms. Jaising in Delhi and Mumbai, again based on the alleged findings in the 2016 MHA FCRA Report.[24] On July 15, 2019, the Bar Association of India issued a “Statement of Concern” about the “excessive, disproportionate, and unjustified” CBI raids and searches, describing them as an “assault on the independence of lawyers engaged in constitutionally protected activities of advancing human rights and upholding the rule of law.”[25]  The Statement of Concern noted that the “rights and duties of the members of the legal profession to perform their professional functions and work towards protecting and promoting the rule of law, administration of justice, and human rights [is] fundamental to any justice delivery system.”[26]  Domestic and international human rights groups have also highlighted the filing of criminal charges against Lawyers Collective and Mr. Grover as evidence that the FCRA is prone to misuse by the government to harass outspoken rights groups.[27]

On July 26, 2019, the Bombay High Court granted an interim order temporarily restraining the CBI from taking any coercive action against Lawyers Collective, Mr. Grover, and Mr. Jaising, until Monday, August 19, 2019.[28]   

The Association’s Concerns About the Arbitrary and Excessive Actions Against Lawyers Collective and Its Founders  

The very fabric of India’s democracy and rule of law are endangered by arbitrary and capricious government actions that chill and suppress freedom of expression and retaliate (or even appear to retaliate) against government critics.  A cross-section of India’s civil society has denounced the CBI’s raids as the “latest in a long line of coercion and intimidation of Ms. Jaising and Mr. Grover” and “nothing short of a brute show of intimidation as well as gross abuse of power.”[29]

Such actions are also antithetical to India’s obligations and commitments under several international human rights treaties and declarations.  The Association stresses that the matter relating to Lawyers Collective’s alleged infractions of the FCRA is still under consideration by the Bombay High Court, and it is of paramount importance that the judicial process be allowed to unfold without hindrance. 

Moreover, the unwarranted haste in filing criminal charges as well as the excessive and disproportionate nature of the raids engenders grave concerns that investigative agencies and processes are being wrongfully deployed to target or seek reprisals against human rights defenders, in particular given that there has been no change in circumstances since the 2016 MHA FCRA Report or any alleged failure to cooperate with the CBI’s investigation.  The Association understands that the CBI did not even issue a summons for documents prior to raiding Mr. Grover and Ms. Jaising’s professional and residential premises, contrary to Indian law and basic tenets of due process.[30] In addition, we are concerned that the 2016 MHA FCRA Report itself was designed to target and intimidate Lawyers Collective, the expression of rights by its members, and its defense of others’ rights in the country.

The Association also takes a serious view of the FCRA’s potential infirmities from an international law and human rights perspective, in light of persistent criticism that the FCRA has been used to hamper and penalize the activities of human rights defenders even beyond the present case.  Under the International Covenant on Civil and Political Rights (the “ICCPR,”) India is obligated to allow for freedom of expression (Article 19(2)), peaceful assembly (Article 21), and freedom of association (Article 22(1)).  The ability to utilize funds from both domestic and foreign sources is a critical component of the right to freedom of association.  As such, “undue restrictions on resources available to associations impact the enjoyment of the right to freedom of association and also undermine civil, cultural, economic, political and social rights as a whole.”[31]  “Any restriction on access to foreign funding must, therefore, meet the stringent test for permissible restrictions for the right to association developed by the international human rights bodies.”[32]  In this context, the Association highlights the findings of the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association that the FCRA and related rules do not conform as required to international law and norms.  Specifically, the Rapporteur found that the FCRA regime “appear[s] to contravene the Union of India’s obligations under the ICCPR to ensure the rights of all under its jurisdiction to free association because it imposes a total ban on associations’ access to foreign funding on vaguely defined grounds for a broad purpose not included in the ICCPR’s enumerated list of legitimate aims.”[33]

International human rights instruments also accord special protections to lawyers and human rights defenders as the guardians of the rule of law.  Governments are obligated under international law to take active steps to ensure that lawyers may freely and safely perform their professional responsibilities. The United Nations Basic Principles on the Role of Lawyers[34] (the “UN Basic Principles”) guarantee minimum legal protections for lawyers.  In particular, all governments must ensure that lawyers are “able to perform all of their professional functions without intimidation, hindrance, harassment, or improper interference,” (Article 16 (a)) and that lawyers must not “be identified with their clients or their clients’ causes as a result of discharging their functions[,]” (Article 18).  The UN Basic Principles also require that lawyers “shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”  (Article 16 (c)).  Lawyers are also expressly guaranteed the right “to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights.”  (Article 23). 

Similarly, the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (the “UN Declaration on Human Rights Defenders”) affords many of the same protections to human rights defenders.[35]   States must ensure “…the protection by competent authorities of human rights defenders against any violence, threats [or] retaliation … as a consequence of … legitimate exercise of the rights referred to in the Declaration on Human Rights Defenders.”  (Article 12 (2)).  The Declaration also protects the right, individually and in association with others, “to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means[.]”  (Article 13).  

More broadly, Article 19 of the Universal Declaration of Human Rights (the “UDHR”) guarantees freedom of expression to all individuals, including human rights lawyers and rights defenders.  Both the ICCPR (Article 9) and the UDHR (Article 9) also enshrine the right to freedom from arbitrary arrest and detention.   

The Association’s Call for Immediate Action

The Association stands in solidarity with lawyers and human rights defenders all over the world.  Accordingly, it respectfully requests the Indian authorities to abide by, and defer to, judicial due process and await the result of the appeal lodged by Lawyers Collective relating to the validity of the 2016 MHA FCRA Report.

The Association also urges that the criminal charges filed in June 2019 against Lawyers Collective and Mr. Grover should be immediately withdrawn pending the results of the appellate process.  The Association requests India’s NHRC to continue to monitor the situation closely and intervene as needed to prevent further arbitrary and oppressive actions against Lawyers Collective or its personnel. 

Finally, the Association calls upon the Indian government to take all necessary measures to ensure that lawyers are able to meet their professional obligations free of harassment and interference, and to afford human rights defenders adequate protections.  To this end, we urge the Indian government to repeal or substantially amend the FCRA, which in its current form fails to comply with international human rights standards.