Over the last few years, the Indian Government has been scrutinizing the flow of foreign funds to all charitable organizations in India. Recently, in April 2015, it was reported that the Ministry of Home Affairs cancelled the licenses of over 8000 charitable organizations due to non-compliance with the reporting requirements stipulated under the Act. In certain instances, the Government has also suspended the registration granted under Foreign Contribution (Regulation) Act, 2010 (“FCRA”), as seen in the case of Greenpeace India. Several other recent reports indicate that the Government has been closely studying the level of compliance with the norms stipulated under FCRA.
The FCRA was enacted with the primary purpose of regulating the inflow of foreign contributions and ensuring that the received foreign contributions are not utilized for purposes other than those specified under the legislation. All charitable organizations in India receiving foreign contributions come under the purview of this Act. Therefore, it is important to understand some of the crucial features of FCRA and implications of non-compliance with the provisions of the statute.
As mentioned above, FCRA applies to “Foreign Contributions” received from “Foreign Sources”. The definition of “Foreign Source” is a detailed and inclusive definition, with a common thread being that the entity that is the ‘source’ of the funds is established in a foreign territory. Additionally, “Foreign Contribution” is defined by FCRA as a donation, delivery or transfer made by a foreign source of:
- any article (unless given to an individual for personal use), the value of which ought not to exceed Rs. 25,000/-;
- currency, foreign or Indian, or
- foreign securities including all foreign debentures, bonds, shares, stocks and similar instruments of credit. Any income or interest generated from such contributions is also treated as a foreign contribution under the FCRA.
Registration / Prior permission
The organizations having a definite cultural, economic, educational, religious or social programme are entitled to accept foreign contributions under the FCRA. Such contributions may be accepted only with the approval of the Government of India, through the Ministry of Home Affairs.
In order to be eligible to receive the foreign contributions, an organization may seek prior approval either each time the entity is to receive contributions or by obtaining a one-time long term registration, which is valid for a period of 5 years. In the latter case, the permission needs to be renewed by applying at least 6 months prior to the date of expiry of the said permission. It may be noted that while not stipulated in the FCRA, it is general practice that in order to be eligible to make a long term application, the applicant needs to be in existence for a period of 3 years. Therefore, in the interim, it is often seen that organizations apply for the one time permission, commonly referred to as “Prior Permission”.
Prior to applying for registration, it is important that organizations review the guidelines that are issued by the Ministry of Home Affairs, which often list out the ground for rejection of applications made to them.
Utilization of Funds
Upon obtaining registration/prior permission, the organization is required to open and maintain a bank account exclusively for the receipt and utilization of foreign contributions under FCRA. All transactions related to foreign contributions must be executed only from the aforesaid bank account. In addition, a separate set of accounts and records is required to be maintained, exclusively for foreign contributions received and utilized.
FCRA mandates that foreign contributions should be utilized only for the purpose for which they were received. It also imposes restrictions on the transfer of contributions. A person is prohibited from transferring contributions to any other person, unless such transferee is authorized to receive foreign contributions. Recently, the Ministry of Home Affairs placed Ford Foundation on its’ watch-list for transferring foreign contributions to organizations not registered under FCRA. The Ministry has in fact, suspended registrations granted to organizations and placed several organizations on its’ watch list for violating this norm which is clearly embodied in Section 7 of FCRA.
One of the most important reporting requirements that is often overlooked by organizations, is the submission of annual returns. Every organization is required to submit the annual returns to the Central Government within 9 months from the closure of the relevant financial year. This return has to include the details of the contributions received, source and manner in which it was received, purpose for which it was received and the manner of usage of the contributions.
Given the recent actions taken by the Government against several charitable organizations, it is imperative that all organizations that receive foreign contributions review the FCRA norms and compliance requirements in detail and follow them meticulously to ensure that they do not run foul of the same and come under the scanner of the Government for non-compliance.