The right to assemble and associate peacefully rests at the core of the functioning of the democratic systems and is closely related to other cornerstones of democracy and pluralism, such as freedom of expression and freedom of association. It is enshrined in a number of international human rights instruments. The Constitution of India provides for freedom to assemble and the freedom to associate. Article 19 (1) (b) provides that all citizens shall have the right to assemble peaceably and without arms. While Article 19 (1) (c) accords all citizens the right to form associations or unions or cooperative societies. Article 22 of the International Covenant on Civil and Political Rights provides that every one shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his/her own interests. In October 2010, the UN Human Rights Council adopted resolution 15/21 in which it recogniz[ed] further that “exercising the rights to freedom of peaceful assembly and of association free of restrictions, subject only to the limitations permitted by international law, in particular international human rights law, is indispensable to the full enjoyment of these rights, particularly where individuals may espouse minority or dissenting religious or political beliefs.”

Indian Democracy: Legal Restrictions on Freedom of Association

India is known for being the largest democracy in the world. The evolution of laws and practices relating to freedoms of association and assembly in India follows closely the political history of the region. This largest democracy has inherited plethora of laws and rules from the British colonial era which have given the Indian State powers that can be sometimes described as unbridled. These set of laws and rules have been used and misused time and again arbitrarily to put restrictions on free expression, free peaceful assembly, criminalise protest, victimise individuals and silence the dissent. The British colonial rulers had different designs. They wanted to somehow restrict the oppressed classes to assemble and associate to rise in protest and win freedom. After independence things took a turn for the worse as freedom of association was curtailed and colonial restrictions on freedom of assembly were retained and sometimes augmented. This was so, notwithstanding the fact that India became party to the international and regional instruments on human rights. Many colonial-era statutes impact the freedom to assemble in India even today such as the Police Act, 1861, the Prevention of Seditious Meetings Act, 1911 and the Armed Forces Special Powers Act, 1958, among other security laws. According to some estimates, there are around 200 laws (some are more draconian) which have the potential to cripple the orgainization of peaceful assemblies or even to make disproportionate impact on the right to freedom of association and assembly of certain groups like minority groups, land rights activists, human rights defenders and media workers. Existence of these laws and adoption of new ones amply demonstrate the level of assault on freedom of association.

In recent years in particular, rights to freedom of peaceful assembly and association have come under serious attacks in India. After a new political dispensation took over power in India in 2014 under the right wing Hindu nationalist party, the Bhartiya Janta Party, crackdowns on freedom of expression and assembly, pressure on civil society, threats against human rights defenders and media workers have intensified tremendously. Civil society groups working in political and governance spheres, and working on human rights have been subjected to intense regimen of bureaucratic scrutiny and harassment. Peaceful protests and other forms of assembly have been violently suppressed and there has been an increase of cases of civil society actors being physically assaulted and eliminated. Space for civic society organizations and their activities has shrunk to the extent that they are being put under growing pressure from the ruling regime which seems determined to eliminate all perceived sources of opposition and dissent. The problem assumes further intensity in conflict areas where underground groups, separatist groups or radical leftist groups are active. The civil society community in such areas gets sandwiched between the State and these non-state actors. The middle ground in these areas is eroding very fast, affecting the right to free association and assembly.

Onslaught on Right to Association: Choking Dissent and Foreign Contribution Regulation Act:

Among the Indian laws the Foreign Contribution Regulation Act 2010 (FCRA) is one of the most prominent examples that have been used selectively to curb democratic right to dissent and disagree. In recent years the act has been used by the Indian government to restrict foreign funding for non-governmental organizations (NGOs) resulting in a major existential threat to freedom of association. The Foreign Contribution (Regulation) Act, 2010 and the Foreign Contribution (Regulation) Rules, 2011 impose restrictions on funding for non-governmental organisations that in practice threatens their rights to freedom of expression and association. Critics say this decision has put India in the category of authoritarian-leaning countries such as Russia and Egypt that are engaged in systematic campaigns to limit the space for civil society by targeting groups that receive foreign funding. It is to be noted that Russian government adopted a law that obliged foreign-funded non-governmental organizations to register as “foreign agents”. The use of provisions of FCRA by the Indian government came as a big blow to the Indian civil society.

The government controls overseas funding of non-profit non-governmental organisations (NGOs) through Foreign Contribution Regulation Act, 2010 (FCRA) which is an elaborate system of screening and scrutiny containing several exclusions with powers to suspend foreign-funding permits. The law was first enacted in 1976, during the Emergency. The main concern cited then was to check the purported presence of "foreign hand" in the activities of opposition parties. After the law was passed, no individual or association could receive foreign funds unless they were registered under the FCRA. In 2010, the law was amended and as a result strict regulation mechanism and severe penalties were added into it giving the Indian Home Ministry the task of directly overseeing all operations under FCRA. Apart from prohibiting politicians, government officers, journalist and news organizations from receiving foreign funds, the law creates strict rules regulating the acceptance of foreign funding by NGOs. Section 13 of the FCRA gives the government unbridled powers to silence organisations working for public causes by branding them ‘political’. The word ‘political’ here is open to interpretation and any activity can be leveled as political activity by the State as per its convenience.

In India restrictions on NGOs came after a March 2012 crackdown by the previous united Progressive Alliance government headed by Indian National Congress on groups involved in protests that stalled industrial projects, including the commissioning of a nuclear reactor. The government froze the accounts of several NGOs involved in these protests. Several organisations have been subjected to inspections in India in relation to their financial status under FCRA. In July 2014, a confidential leaked government report written by India’s Intelligence Bureau (IB) accused 109 NGOs and individuals of ‘subversive links', 'retarding development' and of 'serving the strategic foreign policy interests of Western Governments'. The report targeted the Greenpeace and other NGOs operating in the country and alleged that they were puppets of foreign powers that sought to halt development in India by opposing coal and nuclear power plant projects. Greenpeace India’s activities were described as “a threat to national economic security”, the government restricted Greenpeace India’s international funding, claiming that its activities were “detrimental to the national interest”. Greenpeace activist Priya Pillai was stopped from flying to London on January 2015 on the basis of a look-out-circular (LOC) issued by the Intelligence Bureau (IB). The Indian government justified the decision on the ground that she was off-loaded from the plane as “she had plans to testify on the alleged violations of forest rights of indigenous tribal people in the Mahan coal block area” in central Indian state of Madhya Pradesh. The government action was a “simultaneous violation of the right to free speech, right to freedom of association and personal liberty of movement”. In a major embarrassment to the government, the Delhi High Court termed the Ministry of Home Affairs decision to bar Pillai from travelling to the UK as undemocratic, stating “you cannot muzzle dissent in a democracy”. The court further ordered that the Look-Out Circular in her name be quashed, the offload stamp expunged from her record and that she be removed from any Intelligence Bureau database.

The groups, individuals, citizens groups, funded NGOs and non-funded mass movements - questioning the displacement of large populations and destruction of environment by mega projects and risk to human life and survival posed by nuclear reactors, mining of radioactive minerals like uranium, the indiscriminate use of dirty sources of energy like coal and other hydro carbons and GMO have been tarred in the so called intelligence report as being a threat the `national economic security’ of India. Some activists and former public officials have denounced the report as an attempt to restrict democratic space for civil society action and silence dissenting individuals, organisations, social movements and trade unions.

Vicious persecution and harassment of leading Indian human rights activist Teesta Setalvad and her husband Javed Anand at the behest of the ruling party at the Centre and the State of Gujrat clearly shows the way the State machinery uses blatant powers to threaten and intimidates all those who seek to uphold human rights and democratic values. Teesta Setalvad is a journalist and founder of Sabrang Trust and Citizens for Justice and Peace (CJP). She is being hounded by the Government of India for her work to seek justice for past 13 years against the architects and perpetrators of the Gujarat genocide of 2002. CJP was established in April 2002, in the immediate aftermath of the communal violence of the Gujarat riots, to provide legal aid to the survivors of the riots. CJP has been instrumental in obtaining the 117 convictions against perpetrators of the violence after filing cases against Gujarat government functionaries, including then chief minister Modi, in connection with the 2002 violence against minorities.

On 14 July 2015, the Central Bureau of Investigation (CBI) team raided the premises of Setalvad, her husband Javed Anand, Gulam Mohammed Peshimam and office of Sabrang Communications and Publishing in Mumbai. On July 8, 2015, the CBI registered a case against Ms Setalvad and her organisation under Indian Penal Code (IPC) section related to criminal conspiracy (120-B) read with sections 35, 37 of IPC and sections 3, 11 and 19 of the Foreign Contribution Regulation Act (FCRA) for receiving funds from abroad without seeking the home ministry’s permission. These raids and excessive misuse of the agency’s guidelines on searches were undertaken for purely vindictive reasons given the assurances of complete cooperation and submission of thousands of pages of documents to the CBI.

Investigation by the CBI into allegations of misuse of the regulations of the FCRA and the raids are a naked attempt to scare, stigmatise and harass members of Citizens for Justice and Peace (CJP), at a juncture when investigations into the case against Prime Minister Narendra Modi in the Gujarat riot victims’ cases are at a critical stage. This is not the first time the activists working for justice and truth with regard to ‘Gujarat Riots’ have been targeted. Teesta Setalvad herself has been targeted in several other false criminal cases for which she had to seek anticipatory bail from the Supreme Court. For the past about 30 years both Teesta and Javed have been relentlessly pursuing and espousing variety of causes in defence of human rights, especially of dalits, minorities and other deprived sections of society. The CBI raids were also an attempt to intimidate others who, like members of Citizens for Justice and Peace (CJP), have raised a voice against communal forces in the country.

Onslaught on Right to Association: Foreign Contribution Regulation Act and Case of Social Action Forum (INSAF):

The worst case of abuse of this law pertains to the Indian Social Action Forum (INSAF), a network of over 700 people’s movements and grass-root NGOs in India. In May, 2013 INSAF received a notification from the Indian Home Ministry informing it that the government had suspended its FCRA permit and froze its bank accounts. As per the reason, the Indian government claimed it possesses information which shows that acceptance of foreign contribution by INSAF was likely to prejudicially affect public interest. INSAF member organisations have been active in anti-communal mobilisations, anti-displacement struggles, and campaigns against destructive projects such as Posco, Koodankulam Vedanta, and Special Economic Zones. INSAF’s work has expanded the space for those affected by State policies and asserted their democratic right to intervene in and influence development policies. Under Section 13 of FCRA 2010 provides that the FCRA department may suspend the registration of any organisation for a period of 180 days pending cancellation proceedings. It was noticed that the FCRA department was issuing suspension order without providing an opportunity of being heard. Such orders were unfair and causing undue hardship to the NGOs. The Delhi High Court had quashed this suspension of INSAF’s FCRA in a judgment on 19th September 2013 because of "... failure of the Central government to record the reasons which necessitated suspension of the certificate..." not only at the initial stage, but also before the court.

In April 2015, the government cancelled the licenses of nearly 9,000 NGOs for alleged violation of FCRA. The FCRA has been time and again criticised by NGOs in India and abroad for its unfair interference in the internal management of organisations. The Indian civil society claim that the bogey of “foreign funding” is raised more to smear individual and groups challenging unfair, unjust inequitable and unsustainable state and corporate projects. The stand of the Indian government is based on the assumption that groups which expose human rights abuses associated with development projects are instrumentalised by foreign agents who are out to harm Indian economic growth. It is an irony that those who repatriate profits earned in India by looting and plundering the nation’s wealth are feted as `patriots’ and those citizens who assert India’s and Indians’ rights over our vast common resources and protest against destructive development are dubbed `anti-national-economic interest.’ In April 2015, the UN Special Rapporteur on Freedom of Peaceful Assembly and Association, Maina Kiai, used the example of the Indian government’s action against Greenpeace India to illustrate his concern about how “governments…place restrictions on access to foreign funding to curtail the activities of associations engaged in environmental protection work. He stated that ‘the right to freedom of association not only includes the ability of individuals or legal entities to form and join an association but also to seek, receive and use resources - human, material and financial from domestic, foreign, and international sources’. UN Special Rapporteur on Human Rights Defenders, Margaret Sekaggya who visited India in 2011, recommended that the National Human Rights Commission “monitor the denial of registration and permission to receive foreign funding for NGOs,” with a view to amending or repealing the law.

Freedom of Peaceful Assembly is an individual right that is always expressed in a collective manner. Article 5 of the Declaration on Human Rights Defenders expressly states that the right applies to individuals in association with others, which implies that this right is also protected for associations of individuals, such as non-governmental organizations. In fact, in spite of Indian democracy and India’s membership of the Human Rights Council for the second consecutive term, the situation in the country is no different from global trends. In her 2007 report, the Special Representative of the U.N. Secretary General on the situation of human rights defenders noted that defenders working on land rights, natural resources or environmental issues seem to be particularly at risk as the violations of their rights seems to take all the forms.

In March 2015 a large number of tribal activists and human rights defenders numbering around 15,000 were prevented from participating in a conference organized by two prominent civil society organizations, the Bharat Jan Andolan and the Akhil Bharatiya Adivasi Mahasabha in Godchiroli district of the Indian state of Maharashtra. Activists were detained and forcibly asked to go back. Many were subjected to inhuman and cruel treatment at the hands of police. People were warned not to step out of their homes. In many places people were prevented from using and boarding public transport buses. Tribal and social activist were denied their right to freedom of assembly and association. In April 2015 police opened fire and lathi-charged hundreds of Dalits and Adivasis including large number of women who were peacefully protesting against the illegal construction of the Kanhar dam in Sonbhadra district of northern Indian state Uttar Pradesh. Police left at least 6 women seriously injured and Adivasi leader Aklu Chero was shot in the chest. On 30 June, 2015 Uttar Pradesh police illegally arrested women human rights defenders Ms. Roma Mallik, General Secretary of All India Union of Forest Working People (AIUFWP) and Ms. Sukalo Gond, an tribal leader, under fabricated charges in Sonbhadra district of Uttar Pradesh. Ms. Roma Mallik, is a social activist who has been working for the land and forest rights of tribals and Dalits in Sonbhadra region for the last more than 10 years.

The UN Human Rights Council resolution 15/21 adopted in October 2010 recogniz[ed] that the rights to freedom of peaceful assembly and of association are essential components of democracy, providing individuals with invaluable opportunities to, inter alia, express their political opinions, engage in literary and artistic pursuits. The case of the cultural troupe Kabir Kala Manch (KKM) in the western Indian state of Maharastra is a glaring example which has faced a series of onslaughts unleashed on it by the Maharashtra state. It represents a voice of resistance and dissent expressed through art forms. Their performances have come to symbolize the voice of people’s resistance and their vision for a new just society. Taking up issues such as caste oppression, inequality, poverty, farmers’ suicides, illegal land acquisition and tribal rights, the cultural troupe has been under the scanner of the police and investigation agencies for many years now. They have been branded as a “front organisation” of the Maoists. Members of Kabir Kala Manch were charged under India’s draconian counterterrorism and sedition laws such UAPA (Unlawful Activities Prevention Act) in 2011. Indian authorities have been targeting the group of cultural activists in their attempts to silence their right to freedom of speech and association. The hounding of a group of Ambedkarite artists and poets for performing for the voiceless and powerless sections of the society indicate that only the powerful can dictate as to how an art form should be used in the society.

In the southern Indian state of Tamil Nadu criminal procedure laws have been used to deny the exercise of the right to freedom of association. In one of the most regressive orders on the issue of human rights, the Tamil Nadu State Human Rights Commission (SHRC) went to the extreme of banning the use of word ‘human rights’ in organisational titles, sign board, letter head, visiting card and in all correspondences. The state legislature, surprisingly complying with the SHRC order, amended the Tamil Nadu Societies Registration Act in the year 2010 and enforced this as law. In February 2015 the Madras high court called for details of such forums and asked the state government to crack down on associations that misuse their status. As a result, a large number of human rights organisations were forced to close down their offices or changed their nomenclature unable to bear the heat generated by jurisdictional police. After the court order to look into cases of sham organisations, there has been a state-wide clampdown on organisations wherein no outside complaints from individuals have been made. Between 24th February and 7th March 2015, 142 cases were registered and 33 persons were remanded. A total of 170 cases have been registered against organisations representing “Human Rights Organisations’’ to prevent them from carrying out their legitimate work. The official action has been responsible for gross violation of the rights to peaceful assembly and form associations of Human Rights Organizations and human rights defenders in the Indian state of Tamil Nadu.

It is ironical that that the present Indian government is targeting human rights organizations, civil society groups and fund flows by misusing laws like FCRA, or other civil or criminal laws. Series of crackdowns are aimed to harass, intimidate, or otherwise impede the work of, civil society organizations which constitute a violation of India’s obligations under international and national law to safeguard the rights to freedom of association and expression.