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2007 Assessment

India: Integrity Indicators Scorecard

India: Integrity Scorecard Report > Sub-Category: Civil Society Organizations
Indicators		Score
1	Are anti-corruption/good governance CSOs legally protected?	100
2	Are good governance/anti-corruption CSOs able to operate freely?	75
3	Are civil society activists safe when working on corruption issues?	33
4	Can citizens organize into trade unions?	75

Indicator and sub-Indicator Details

Are anti-corruption/good governance CSOs legally protected?

1a: In law, citizens have a right to form civil society organizations (CSOs) focused on anti-corruption or good governance.

Score:

YES

Comments: Article 19 deals with the broad right to freedom. As part of the right to freedom, citizens have the right to form associations (including civil society organizations) that focus on any issue (including fighting against corruption and ensuring good governance) as long as the goals of the association are not contrary to the constitution and the laws of the state. CSO's can also use another constitutional provision of Article 19, which allows citizens to carry out any trade, occupation of business.

References: Article 19 of the constitution

Peer Review Comments: Only response to the first part of 1a is true. That is, citizens have a right to form civil society organizations. The second part, forming CSOs focusing on the issues mentioned (anti-corruption and good governance), is not explicit. However, neither the government nor the judiciary has prevented the use of this article for forming CSOs to fight against corruption or for good governance.

Peer Review Comments: This constitutional guarantee, however, is limited by the strong and overwhelming presence of an executive that resorts to abusive provisions of Preventive Detention Laws against activists forming such associations

1b: In law, anti-corruption/good governance CSOs are free to accept funding from any foreign or domestic sources.

Score:

YES

Comments: They are free to accept funding from any source but are required to declare it if it is from a foreign source. Funding from foreign sources can be accepted only after certain requirement are met as per the Foreign Contribution Regulation Act. The CSO should have been registered and working for at least three years before it applies for permission to seek funds from outside India. Any such funds received (after securing the permission) need to be declared to the government in a prescribed format. The government has the power to cancel permission granted to a CSO to receive foreign funds on a wide range of grounds, including non-compliance with the norms prescribed.

References: Foreign Contribution Regulation Act, 1976;

Web site of the Home Ministry: www.mha.gov.in;

Also guideline in Foreign Contributions - www.mha.gov.in/fcraweb/fc_online.htm

Peer Review Comments: First and foremost, in India no civil society organization exists that is specifically labeled as anti-corruption or for good governance. Of course, some CSOs, or non-governmental organizations as they are better known, focus on these issues exclusively or as part of their larger agenda. Their sources of income from foreign agencies are regulated and subject to government scrutiny. There is also a waiting period. No NGO that has just registered can immediately attempt to obtain foreign funds.

Peer Review Comments: The Ministry of Home Affairs is granted a lot of discretionary powers by the law and it is used more often against CSOs that do not conform.

1c: In law, anti-corruption/good governance CSOs are required to disclose their sources of funding.

Score:

YES

Comments: They are required to disclose their source of funding in the case of funding received from abroad. Further, if the CSOs want to claim exemption from taxation on the grounds of being a non-profit organization, they must apply for specific permissions. CSOs are required to be registered organizations (which by virtue of registration have to conform to state laws), either trusts or societies or even companies. Such registered organizations are mandatorily required to file their income returns, which will have to include sources of funding. All organizations have to necessarily disclose their funding from foreign sources. However, it is also true that a lot of this funding is not officially disclosed and remains as unaccounted donations.

References: Foreign Contribution Regulation Act, 1976;

Web site of the Home Ministry: www.mha.gov.in;

Also guideline in Foreign Contributions - www.mha.gov.in/fcraweb/fc_online.htm

Peer Review Comments: The disclosure required is to the concerned department of the government. There is no public disclosure, in the sense of making the funding sources transparent through the media. But, as mentioned in the response, a number of civil society organizations evade disclosure and even misuse income from funding sources.

Are good governance/anti-corruption CSOs able to operate freely?

2a: In practice, the government does not create barriers to the organization of new anti-corruption/good governance CSOs.

Score:

100

Comments: Many CSOs have been formed to fight corruption and promote good governance. As many of the CSOs are located in specific regions/cities, some have formed federative organizations across the country to coordinate their activities. Alliance for Democratic Rights (ADR) is one such group which moved the Supreme Court through a PIL (Public Interest Litigation) seeking a directive to be issued to the government that all candidates contesting elections to state legislatures and Parliament be mandatorily required to file an affidavit providing details of assets and convictions/cases pending in the court. This PIL and the subsequent Court action resulted in a historic victory for CSO's and made it mandatory for all candidates to file such affidavits at the time of filing nomination. Further, the initiatives of Lok Satta in Andhra Pradesh and Janaagraha in Karnataka are being duplicated in other states. In reality, the government is often a little apprehensive of such CSOs. Both the political leadership and the bureaucracy often see some of the CSOs as being breaks from the independent function. There have been instances in which the government has taken recourse to quoting laws, rules and regulations when dealing with CSOs. This has often made the smooth functioning of CSOs more difficult. This is especially true in the case of CSOs which seek to use the Right to Information Act to secure information and thus expose acts of administrative indiscretion. From another perspective, it could be argued that some measure of accountability with regard to the CSOs is important and critical. Part of the governments unease with CSOs is also linked to the lack of transperancy in CSOs with regard to their functioning and also sources of funding.

References: Right to Information Act;

www.loksatta.org;

www.janaagraha.org

Peer Review Comments: (1) The Supreme Court's direction on the PIL also requires the candidates to election to declare their educational qualifications in addition to assets and criminal background.

(2) Mazdor Kisan Sangar Samiti in Rajasthan took the initiative and mobilised farmers and sought information from the government on their rights and previleges, which ultimately led to enactment of the Right to Information Act.

(3) It is true that the accountability level of CSOs is not adequate.

2b: In practice, anti-corruption/good governance CSOs actively engage in the political and policymaking process.

Score:

100

Comments: CSOs are registering a greater presence in the political and policy-making process. There is some resistance to their entry from the conventional players who dominated this arena. The reluctance to accept the role of the CSOs also comes from the contest over space argument. CSOs claim to represent the citizen voice. The traditional players in the political and policy-making process gain their legitimacy too from being the voice of citizens, most times being elected through democratic channels. They often see the participation of the CSOs as an `extra constitutional` player who is seeking to challenge the legitimate space they claim as being their very own. Increasingly, CSOs that have been able to gain both greater legitimacy and visibility, have begun carving out a space for themselves in the political/policy-making process. However, the fault lines are not yet clear, and more often than not the capcity of CSOs to be recognized as legitimate stake holders has much to do with their networking skills with those in positions of power and influence. It is not surprising that many CSOs have retired government officials as consultants to facilitate this task.

References: World Bank position papers: www.worldbank.org;

www.janaagraha.org;

www.pacindia.org

Peer Review Comments: Though the numbers are less, there are CSOs like ADR, MKSS, Jansatta and Transparency International which have influenced the process of policymaking without being political.

2c: In practice, no anti-corruption/good governance CSOs have been shut down by the government for their work on corruption-related issues during the study period.

Score:

YES

$Scoring Criteria :: YES: A YES score is earned is there were no CSOs shut down by the government or forced to cease operations because of their work on corruption-related issues during the study period. NO: A NO score is earned if any CSO has been effectively shut down by the government or forced to cease operations because of its work on corruption-related issues during the study period. The causal relationship between the cessation of operations and the CSO\'s work may not be explicit, however the burden of proof here is low. If it seems likely that the CSO was forced to cease operations due to its work, then the indicator is scored as a NO. Corruption is defined broadly to include any abuses of power, not just the passing of bribes.$

Comments: No CSO has been forcibly/fromally shut down by the government. There may be instances of CSOs having faced various forms of harassment from state agencies for their fight against corruption. This could include bureaucratic bottlenecks being created in the form of the plethora of procedures and regulations that CSOs are asked to adhere to/ comply with. This includes the regulations governing foreign contributions.

References: [ LINK ];

newspaper reports

Peer Review Comments: Instances where CSOs have been co-opted into the system by way of arm-twisting by the politician-bureaucrat nexus cannot be glossed over. They may not have been shut down, but they have been slowed down.

Are civil society activists safe when working on corruption issues?

3a: In practice, in the past year, no civil society activists working on corruption issues have been imprisoned.

Score:

YES

$Scoring Criteria :: YES: A YES score is earned if there were no CSO activists imprisoned because of their work covering corruption. YES is a positive score. NO: A NO score is earned if any activist was jailed in relation to work covering corruption. The causal relationship between the official charges and the person\'s work may not be explicit, however the burden of proof here is low. If it seems likely that the person was imprisoned due to his or her work, then the indicator is scored as a NO. Corruption is defined broadly to include any abuses of power, not just the passing of bribes.$

Comments: This question needs to be handled with an element of care and caution. It cannot be denied that some of those (individuals and groups) involved in the fight against corruption have had to bear the burden of direct and indirect persecution. There have been reports of activists of civil society groups fighting different forms of corruption being imprisoned for their peaceful protests. One example is that of the activists of the Narmada Bachao Andolan. Mention can also be made of the arrest of social activists in the past. To cite a recent incidence-on May 14, 2007, Dr. Binayak Sen, general secretary of the People's Union for Civil Liberties (PUCL) (Chattisgarh unit) was arrested and detained under Chattisgarh Special Public Security Act, 2006 (CSPSA) and the Unlawful Activities (Prevention) Act, 1976.

References: [ LINK ]

Peer Review Comments: Although the situation is improving, many obstacles remain. Human Rights Watch worked with the AIDS relief organization Sampada Gramin Mahila Sanstha (SANGRAM) earlier this year, documenting how the Indian police and local thugs obstructed the organization's work through harassment and abuse of its outreach workers.

Peer Review Comments: The social activists mentioned in the report are not working on corruption issues directly.

3b: In practice, in the past year, no civil society activists working on corruption issues have been physically harmed.

Score:

YES

$Scoring Criteria :: YES: A YES score is earned if there were no documented cases of CSO activists covering corruption being assaulted in the specific study period. A YES score can be earned if there was an attack but it was clearly unrelated to the activist\'s work. YES is a positive score. NO: A NO score is earned if there were any documented cases during the study period of assault to an activist who covers corruption. Corruption is defined broadly to include any abuses of power, not just the passing of bribes.$

Comments: Reports have suggested that civil society activists have been harmed both by those they were investigating and by the state machinery.

References: www.oecd.org/dataoecd/52/2/35137772.pdf; www.skdubeyfoundation.org/tribute/archives/000086.php

Peer Review Comments: The report refers to the SK Dubey Foundation. Dubey was a whistle-blower and not a social activist.

3c: In practice, in the past year, no civil society activists working on corruption issues have been killed.

Score:

YES

$Scoring Criteria :: YES: A YES score is earned if there were no documented cases of CSO activists being killed because of their work covering corruption in the specific study period. YES is a positive score. NO: A NO score is earned if there were any documented cases during the study period where a person was killed related to a corruption trial, scandal or investigation. The relationship between a mysterious death and an individual\'s history may not be clear, however the burden of proof here is low. If it is reasonable that a person was killed in relation to his or her work on corruption issues, then the indicator is scored as a NO. Corruption is defined broadly to include any abuses of power, not just the passing of bribes.$

Comments: There are no documented and verified instances of a civil society activist being killed for specifically investigating corruption issues.

References: www1.oecd.org/daf/asiacom/pdf

Peer Review Comments: It is important to note here that CSO activists working against corruption are also political activists involved in struggles against land alienation and other forms of oppression. And where they are killed, such killings are registered as ``encounter" deaths and treated as legitimate acts by the state. The March 14, 2007 killings in Nandhigram, for instance, cannot but fall in this category.

Can citizens organize into trade unions?

4a: In law, citizens have a right to organize into trade unions.

Score:

YES

Comments: Article 19 of the constitution allows citizens to form associations (including trade unions). Further, the Trade Unions Act also guarantees the right. However, the act covers registered trade unions only. The act defines a trade union, outlines provisions for its registration, cancellation and dissolution and also enumerates the rights and obligations of unions. With globalization and economic reforms, there has been a movement to amend the Labor/ Trade Union Laws to bring it in consonance with the provisions of the World Trade Organization. It is also important to note that a bulk of the Indian work force is in the un-organized sector, which does not have access to being represented by organized trade unions.

References: Article 19 of the constitution

Peer Review Comments: This right, though recognized, is somewhat vague. The right to organize into trade unions also means the right of government employees to organize into employees unions. From time to time, the government tries to scuttle any direct action by such unions by invoking the Essential Services Maintenance Act, and, on the eve of a strike, declaring certain services essential. The government's position is therefore vague. The same is true of the judiciary.

4b: In practice, citizens are able to organize into trade unions.

Score:

100

Comments: In practice, a very small percentage of the Indian labor force is in the organized sector and thus has the protection of its own unions. The organized sector has extremely powerful trade unions, many of which are part of national affiliates. The organizing of a trade union today requires legal support, professional time, expertise and experience. As a result, many of those who hold leadership positions in trade unions are professional trade unionists.

References: Trade Union Act; Ministry of Labour and Employment: www.labour.nic.in/

Peer Review Comments: The fact that only about 10 percent of employees in India are in the organized sector itself speaks against the citizens' right to organize into trade unions. India's unorganized sector is too vast and too insecure. It consists of construction workers and various other forms of daily wage earners. They have no right to organize into unions. Even if they had the right, they have no ability, in the sense of political and other external support, to organize.

Even within the 10 percent of the organized sector, only a fraction is in trade unions. Over the years, with the dismantling of large-scale assembly line industries, the dismantling of a number of public sector undertakings through what may be termed "disinvestment," the earlier ardor of workers and employees to organize into unions has been dampened. The new work rhythm, work culture and work arrangements brought about by numerous multinationals through call centers, the country's balance of payments and so on also have been working against citizens' rights and abilities to organize into trade unions.