Kerala HC sets aside Centre’s refusal to renew FCRA certificates of two NGOs

Kochi: The Kerala High Court has set aside the Centre’s decision not to renew the FCRA certificates of two NGOs, accused by central agencies of funding agitations against the Vizhinjam sea port, saying that financial support to a protest cannot be seen as diversion of foreign funds.

The High Court said that the right to protest is guaranteed under the Constitution and therefore, financial support to protesters cannot be seen as a diversion of foreign funds for an undesirable purpose or against public interest, tantamounting to violation of any provision in the Foreign Contribution Regulation Act (FCRA).

“When the right to protest is constitutionally guaranteed, exercise of such rights cannot be labelled as an ‘undesirable purpose’ or against public interest. The term ‘undesirable purpose’ in section 12(4)(a)(ii) of the FCRA cannot be interpreted to mean undesirable to the Government or undesirable to the political will.

“A peaceful protest against a project by persons who have a grievance or who apprehend injury to them, cannot be viewed as an ‘undesirable purpose’ due to political disapproval,” it said in the order dated August 11.

The court also said that “executive or administrative distaste” for protests or dissents cannot convert the exercise of a constitutionally protected right into an ‘undesirable purpose’ or as against public interest.

“Thus, even if it is assumed that some financial support was provided to the protestors, it cannot be treated as diversion of foreign contribution for an undesirable purpose or against public interest, tantamounting to violation of any provision in the FCRA,” it said.

It further said that characterisation of a purpose as ‘undesirable’ has to be rooted in a legal prohibition or a public injury.

The court also noted that there was no financial trail between the petitioner NGOs — Kerala Social Service Forum and Save a Family Plan India — and any of the protestors directly.

“Thus, the action of the respondents in denying the renewal is illegal and liable to be interfered with. Irrelevant considerations have been made the basis for rejecting renewal of FCRA status after ignoring the relevant considerations,” the court said.

It further said that the intelligence report states that the Latin Catholic Archdiocese of Trivandrum (LCAT), representing the agitating fisherfolk community in Vizhinjam, had led the agitation and that out of the 29 NGOs involved in the agitation, nine were FCRA-registered, with five of them having active FCRA status.

The court said that the two NGOs named were not part of either the five active FCRA-status organisations or even in the list of the 29 NGOs that had participated in the agitation.

“It is a travesty of justice that despite not being part of any protest, the petitioners’ application for renewal of the FCRA certificate has been rejected,” it said.

The court said that in the instant matter, no serious violation or misuse of foreign contribution received by the NGOs was evident or borne out by the records and the authorities ought to have viewed the application for renewal with an open mind.

“Thus, the refusal to renew the certificate of the petitioners under FCRA is arbitrary and illegal. The petitioners are entitled to have their certificates renewed.

“Hence, the orders refusing to renew the certificate of registration of the petitioners under FCRA are set aside and the competent amongst the respondents, including the Union Home Ministry, is directed to pass fresh orders in the light of the observations made above, in a time-bound manner, at any rate within three months from the date of receipt of this judgment,” the court said.

A large number of fisherfolk had staged demonstrations outside the main entrance of the Vizhinjam multi-purpose seaport in Thiruvananthapuram for over four months in 2022, and the agitation was called off in December that year after discussions between its leaders and then Kerala Chief Minister Pinarayi Vijayan. The protestors had been pressing their seven-point charter of demands that included stopping the port construction work and conducting a coastal impact study in connection with the multi-crore project.

The agitators had alleged that the unscientific construction of groynes, the artificial sea walls as part of the upcoming port, was one of the reasons for the increasing coastal erosion in the Vizhinjam coastal area.