CBI challenges stay by Bombay HC in the Lawyers Collective Case

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The Controversy:

Lawyers Collective is a human rights organisation running with the motive of advocating the rights of the minority, marginalised and vulnerable communities in India. In the past, through their work, they have shown utmost respect for the constitutional values of the country. The organisation was formed by two senior advocates of the Supreme Court- Anand Grover and Indira Jaising. Both of them have shown an exceptional work history dedicated to public service, rectitude and personal and professional integrity as well as excellence as lawyers and as human rights activists. They have previously held important positions in the country as well as on an international level. Mr. Grover has been the UN Special Rapporteur on Right to Health from August 2008 – July 2014. While Ms. Indira Jaising was an Additional Solicitor General of India FROM 2009 TO 2014 as well as a member of the UN Committee on the Elimination of Discrimination Against Women [CEDAW] between 2009-12.

Earlier, in June 2019, the Central Bureau of Investigation [CBI] had filed an FIR against the organisation and its key functionaries, as mentioned in the FIR. The case was made out of violating the provisions of the Foreign Contribution Regulation Act [FCRA]. In 2016, the Ministry of Home Affairs [MHA] had prepared a report on the functioning of lawyers collective in the context of the various provisions of the FCR Act. This report though challenged in the High Court of Bombay by the organisation, was the sole material on which the FIR filed by the CBI has relied upon. It was nothing but a misuse of power to have filed criminal charges against a human rights organisation and its functionaries based upon a report which is sub-judice in the High Court. This should be seen in the context of implicating human rights organisation since the Modi led BJP government assumed power for the first time in 2014. As per a report by Firstpost, that on an approximate of 20,000 FCRA licences of Non-Government Organisations [NGO] was cancelled. The report highlighted that the Foreign Contribution Regulation statute is being used as a tool in the hands of the Government to silence organisations working in the field of human rights and impair their work. Even the raids which were recently conducted by the Central Bureau of Investigation [CBI] was just another manner to harass and intimidate the working of a pro-human rights organisation. 

Raids by the Central Bureau of Investigation:

The matter of filing of criminal charges against Anand Grover and functionaries of Lawyers Collective is pending at the National Human Rights Commission (NHRC) since June 2019. In the ongoing matter at the NHRC had passed directions to the CBI, asking to submit within 4 weeks the ‘present status of the investigation’ in the case. It was only after passing of this direction by the NHRC, three weeks after, that the CBI conducted raids. Moreover, the report submitted by the Ministry of Home Affairs in May 2019 directing further investigation as per law, which was not done but the report itself was blindly followed.

FCRA has become a tool in the hands of the government to harass human rights-based work in the country: 

The events of harassing the working of human rights organisation clearly bring forth the intention of the ruling government to restrict the ongoing case at the NHRC in this matter. The ruling government has shown absolutely no tolerance for the organisations or individuals who are critical of the government, bringing into its radar non-government organisations, civil society organisations and other right spirited individuals.

The raids in the pretext of the pattern reflected by the ruling government in the past are not only in violation of the domestic legal framework but are also in complete abrogation of India’s international commitments, especially the one undertaken under the United Nations Declaration on Human Rights Defenders, 1998. Even the Supreme Court Bar Association and Delhi HC Bar Association termed the act to be an ‘assault on the independence of lawyers’.

The mandate of the 1998 declaration casts an obligation on the government, including its functionaries to show utmost respect towards extending protection to human rights defenders. In the year 2016, the United Nations Special Rapporteur on Freedom of Assembly and Association has closely scrutinised the analysis of the FCRA. The report highlighted the discrepancies in the FCRA, 2010. It says that the mandate of the act is to regulate foreign funding to individuals, associations and companies and is not in full conformity with the international standards, as prescribed. It has also commented that access to foreign funds for working is a right in the international law regime. In view of the analysis of the Indian statute on foreign contribution, the SR had requested the Indian government to take cognisance of the discrepancies and to immediately give back FCRA licenses to the organisations, which has been previously revoked.

Statement of Lawyers Collective:

Lawyers Collective itself issued a statement in this regard stating that a sudden raid after three years of the report is ‘uncalled for’, especially implicating a case of FCRA into pressing criminal charges. They called raids to be ‘improper and deplorable’ as the premises raided were having privileged client communication record, not to be made public.

CBI moves the Supreme Court

In furtherance of the raids by the Central Bureau of Investigation in July 2019 it has filed a special leave petition before the Supreme Court against the previous order of the Bombay High Court. The judgement of the Bombay High Court came as a relief to the key functionaries of the organisation and the organisation itself. The judgment was pronounced by Justice Ranjit More, heading a division bench directing the CBI to stop taking any further coercive step against the organisation, until further orders. Further the interim measures continue vide an order dated August 19, 2019.

While pronouncing the judgment, the court observed that the FIR filed against Lawyers Collective in June has no new material. The FIR is said to be filed in furtherance of a complaint made by Anil Kumar Dhamsana, Under Secretary Ministry of Home Affairs. The FIR came to be registered after an NGO ‘Lawyers Voice’ demanded a probe against Lawyers Collective, via filing a Public Interest Litigation [PIL] at the Supreme Court. The case before a bench headed by the Chief Justice of India, Ranjan Gogoi, which issued notices in the case. Soon after, Indira Jaisingh issued a statement saying that her work in the enquiry process of sexual assault allegations against the CJI Ranjan Gogoi, has made her the target and is being harassed by falsely implicating her organisation in a false FCRA case.

 

The complaint set of allegations against the organisation that there was a diversion of foreign contributions received towards activities and purposes beyond the objects of the association, more towards personal expenses unrelated to the work of the organisation. The FIR mentions that the activities of the organisation, as mandated is to perform social functions in lieu of the funds received via FCRA. However, it has been alleged that the money was used for political purposes as well.

On counts of similar allegations in 2011, in the month of November, the NGO’s FCRA registration was cancelled by the MHA, and all their financial bank accounts were frozen, impairing them to carry any further work. The coercive actions were appealed for in the court, heard by Justice M.S. Sonak. The interim orders passed by the court, went in favour of the organisation saying that the allegations made out in the FIR are ‘vague and bereft of reasoning’. Therefore, it found no evidence to support the allegation of “mixing of foreign contribution with domestic funds” and thus ordered to de-freeze the accounts of Lawyers Collective. The observation of ‘absence of fresh material’ was made because the FIR was solely and entirely based on the inspection of Report of 2016. Moreover, the court provided the organisation an opportunity to file a detailed reply “placing on record the material justifying the invocation of the provisions of the FCRA 2010.”

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