Understanding ‘prior permission’ under FCRA

An association or an organisation can receive foreign contribution even without registration with prior permission from the FCRA department. Foreign funds and materials can only be received under two circumstances-

i. the organisation has obtained permanent registration from the FCRA department.
ii. the association or the organisation obtains prior permission from the FCRA department on case to case basis.

Generally prior permission will be required under the following circumstances:

i. the organisation does not have permanent FCRA registration number.
ii. the FCRA registration number has been cancelled by the Government.
iii. the association is instructed by the Central Government to take prior permission where power have been provided to prohibit any organisation from receiving foreign funds.
iv. the FCRA number is suspended due to violation of the provisions and conditions specified under the FCRA.
v. the organisation is of political nature, not being a political party.
vi. any person resident in India or any citizen of India resident outside India, receiving foreign funds on behalf of an organisation of political nature.

The relevant statutory provisions: The expression of prior permission appears in Section 11(2) and 11(3). The relevant extract of Section 11(2) and 11(3 )is reproduced as under :

(2) Every person referred to in sub-section (1) may, if it is not registered with the Central Government under that sub-section, accept any foreign contribution only after obtaining the prior permission of the Central Government and such prior permission shall be valid for the specific purpose for which it is obtained and from the specific source:

Provided that if the person referred to in sub-sections (1) and (2) has been found guilty of violation of any of the provisions of this Act or the Foreign Contribution (Regulation) Act, 1976, the unutilized or unreceived amount of foreign contribution shall not be utilized or received, as the case may be, without the prior approval of the Central Government.

(3) Notwithstanding anything contained in this Act, the Central Government may, by notification in the Official Gazette, specify—
(i) the person or class of persons who shall obtain its prior permission before accepting the foreign contribution; or
(ii) the area or areas in which the foreign contribution shall be accepted and utilized with the prior permission of the Central Government; or
(iii) the purpose or purposes for which the foreign contribution shall be utilized with the prior permission of the Central Government; or
(iv) the source or sources from which the foreign contribution shall be accepted with the prior permission of the Central Government.

Procedure for obtaining ‘prior permission’

The Organisation is required to apply in Form FC-3 for prior permission to the FCRA department along with the uploading of the following documents-:

SI. No	Document Name	Maximum Size Limit of PDF document
1.	Registration Certificate of Association.	1 MB
2.	Memorandum of Association/Trust Deed.	5 MB
3.	Commitment Letter from the donor organization and agreement.	5 MB
4.	Project Report for which FC will be received.	3 MB

i. Audited statement of accounts of past three years.
ii. Activities Report of past 3 years.
iii. If the association is a registered Trust or Society a certified copy of the registration certificate.
iv. Copy of the Memorandum of Association and/or the Articles of Association as applicable.
v. A copy of the latest commitment letter from the donor.
vi. A copy of the proposal / project which has been approved by the foreign source for funding, including projected outlays, budget breakups.
vii. Details of names and addresses of the members of the Executive Committee/Governing Council etc. of the Association.
viii. Copy of any prior permission granted to the organization.
ix. List of present members of the Governing Body of the organisation and the office bearers.
x. Copy of any Journal or other publication of the organization.
xi. If the association is having any parent or sister or subsidiary organisation which is registered under the FCRA then the registration number along with Ministry of Home Affairs file number should be mentioned.
xii. If the association has submitted any application earlier then its reference number should be mentioned.
xiii. If the association has received any foreign contribution with or without the prior approval of the Central Government, then the detail should be given.
xiv. Details of Bank along through which the foreign contribution shall be received.
xv. A recommendation certificate from any competent authority, if any.
Copy of certificates of exemption or registration issued by the Income Tax Department u/s 12A, if any

Time Limit for making application

An application for prior permission under Form FC-3 can be made any time after the legal constitution of an organisation. Though clause of Form FC-3 requires submission of details of activities of past three years and three years audited statements. Where the organisation is less than three years old, it can submit the documents for lesser number of years as may be available.

Prior Permission for receiving Foreign Hospitality

Under FCRA, the following are prohibited from accepting foreign hospitality except with prior permission:

- member of a legislature
- office bearer of a political party
- Judge
- Government servant or employee of any corporation

The above-mentioned persons are required to apply in Form FC-2 for availing any foreign hospitality. In this Form, details regarding the nature of hospitality, the approximate amount of expenses, the specific dates and countries is required to be provided.

The exceptional situation - Further, it has been provided that no such prior permission would be necessary in case of an emergency medical aid on account of a sudden illness. In such cases, the person receiving such hospitality can give, within one month from the date of receipt of such hospitality, an intimation to the Central Government, regarding the receipt of such hospitality and the source and the manner in which such hospitality was received. Section 6 and rule 7 are relevant in this regard.

Field Enquiry

The FCRA department may ask the intelligence bureau for a report. Some authorities from the intelligence bureau may visit the office and the project area of the organisation and inspect the books of account and other records available. On the basis of the reports submitted by the intelligence bureau the FCRA department decides whether to accept or reject the application.

The FCRA department issues a registration certificate and provides a permanent registration number. This registration number is required to be quoted in all future correspondences and filling of returns and forms.

Time limit for granting ‘prior permission’

After making inquiry, the Central Government may grant him prior permission, ordinarily within ninety days from the date of receipt of application.
In case the Central Government does not grant, within the said period of ninety days, prior permission, it shall communicate the reasons there for to the applicant.

Refusal and appeal

Section 12(4)(a) states the grounds or the reasons on the basis of which an application can be rejected. If the Central Government after making the necessary inquiry is of the opinion that the person making an application for prior permission is fictitious or benami; has been prosecuted or convicted for indulging in activities aimed at conversion through inducement or force, either directly or indirectly, from one religious faith to another; has been prosecuted or convicted for creating communal tension or disharmony in any specified district or any other part of the country; has been found guilty or diversion or mis-utilisation of its funds; is engaged or likely to engage in propagation of sedition or advocate violent methods to achieve its ends; is likely to use the foreign contribution for personal gains or divert it for undesirable purposes; has contravened any of the provisions of this Act; has been prohibited from accepting foreign contribution.
Where the Central Government refuses the grant of certificate, it shall record in its order the reasons therefor and furnish a copy to the applicant. The Central Government may not communicate the reasons for refusal for grant of certificate to the applicant in cases where is no obligation to give any information or documents or records or papers under the Right to Information Act, 2005.

If an application is rejected and the applicant believes that an unjust order was passed against him, then he can appeal to High Court within a period of sixty days from the date of the order of rejection. The period of sixty days should be counted from the date of the order and not the date of receipt of the order.

The statutory provision - The provision for appeal is provided as per section 31 which is an under:

(2) Any organisation referred to in clause (f) of sub-section (1) of section 3, or any person or association referred to in section 6 or section 9, aggrieved by an order made in pursuance of section 5 or by an order of the Central Government refusing to give permission under this Act, or by any order made by the Central Government under sub-section (2) or sub-section (4) of section 12, or sub-section (1) of section 14, as the case may be, may, within sixty days from the date of such order, prefer an appeal against such order to the High Court within the local limits of whose jurisdiction the appellant ordinarily resides or carries on business or personally works for gain, or, where the appellant is an organisation or association, the principal office of such organisation or association is located.

(3) Every appeal preferred under this section shall be deemed to be an appeal from an original decree and the provisions of Order XLI of the First Schedule to the Code of Civil Procedure, 1908, shall, as far as may be, apply thereto as they apply to an appeal from an original decree.

VARIOUS TYPES OF PERSONS RECEIVING FOREIGN FUNDS

Under FCRA there are various categories of recipients of foreign funds and FCRA has different stipulation for each of them. The following sub-heads discuss the various kinds of recipient and the stipulation laid down for each of them:

NGOs or Charitable Organisation

All NGOs or Charitable Organisations having a definite cultural, economic, religious or social programme are eligible for registration under FCRA. Once a FCRA registration is obtained, such organisation can receive foreign funds with obtaining any further approval subject to other formalities of FCRA.

Person specified in Section 3

Section 3 of FCRA specifies that the following persons cannot receive foreign contribution:

a) candidate for election;
b) correspondent, columnist, cartoonist, editor, owner, printer or publisher of a registered newspaper;
c) Judge, Government servant or employee of any corporation or any other body controlled or owned by the Government;
d) member of any Legislature;
e) political party or office-bearer thereof;
f) organisation of a political nature as may be specified under sub-section (1)
of section 5 by the Central Government;
g) association or company engaged in the production or broadcast of audio news or audio visual news or current affairs programmes through any electronic mode, or any other electronic form as defined in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000 or any other mode of mass communication;
h) correspondent or columnist, cartoonist, editor, owner of the association or company referred to in clause (g).

The above mentioned person cannot receive foreign contribution subject to certain exceptions specified in section 4 which are as under:

a) If they receive foreign funds by way of salary, wages or remuneration for services rendered.
b) If they receive payment in ordinary course of business transaction in India by such foreign organisation or source.
c) If the funds are received in the course of international trade or commerce or in the ordinary course of business transacted outside India.
d) Payment is received as an agent of a foreign source or organisation in relation to any transaction made by such foreign organisation with the governance.
e) If the payment is received by way of gift or presentation as a part of any Indian delegation within the norms of acceptance described by Central Government.
f) Payment is received from relative staying abroad.
g) Payment is received through official channel, post office or any authorized dealer in the ordinary course of business”.
h) by way of any scholarship, stipend or any payment of like nature:

Organisation of Political nature

Organisation of political nature cannot register itself under FCRA and they are not eligible to receive foreign contribution. The Central Government has published a list of organisations which are considered as organisation of political nature.

Individual Citizens

The Foreign Contribution (Regulation) Act is applicable to private individuals also. The definition of person includes- individuals, Hindu Undivided Family, Association, a Section 8 company.

Organisations engaged in commercial/business activity

Movement of foreign funds in the normal course of commerce and business is outside the purview of FCRA. Therefore, business organisation need not worry about FCRA as FCRA is only internal security enactment. However, the provision of Foreign Exchange Management Act, 1999, which is a financial legislation, would be applicable.

Annexure 1

List of Organisation which are considered as Organisation of Political Nature

Sl. No. Name of the Organisations

1. All India Kisan Sabha (AIKS) 4, Windsor Place, New Delhi.
2. Bhartiya Khet Mazdoor Union, 4, Windsor Place, New Delhi.
3. All India Trade Union Congress, New Delhi.
4. All India Kishan Sabha (AIKS) 4, Ashoka Road, New Delhi.
5. Centre for Indian Trade Unions, 15, Talkatora Road, New Delhi.
6. Bhartiya Mozdoor Sangh, Ram Naresh Bhawan, Pahargunj, New Delhi.
7. Indian National Trade Union Congress, 4, Bhai Veer Singh Marg, New Delhi.
8. United Trade Union Congress Lenin Sarani, Calcutta.
9. National Front Indian Trade Unions 10, Government Place East, Ezra Mansion, Calcutta.
10. All India Federation of University & College Teachers Organisations, Calcutta.
11. All India LIC Employees Federation, Bombay.
12. All India Bank Employees Federation, Delhi.
13. All India Defence Employees Federation, Pune.
14. All India State Government Employees Federation, Hyderabad.
15. All India Railwaymen’s Federation, New Delhi.
16. All India Railway Worker’s Federation, New Delhi.
17. Bhartiya Railway Mazdoor Sangh, Mumbai.
18. All India Loco Running Staff Association, Lumding, Assam.
19. All India Federation of Electricity Employees, Residency Road, Sadar, Nagpur.
20. National Federation of Post & Telegraph, Employees (K.L. Moja Group). New Delhi.
21. Trade Union Coordination Centre, 28, Gurudwara Rakabganj Road, New Delhi.
22. Progressive Labour Union, Durgapur, West Bengal.
23. Kerala Trade Union Front, Chettiangadi, Trichur.
24. Swantantra Thozilali Union, State Muslim League Office, Calicut.
25. Swantantra Thozilali Union, Mavoor, Calicut.
26. Labour Progressive Federation, Arivagam, Rayapuram, Madras.
27. Anna Thozhir Sangha Peravani, Madras.
28. State Central Labour Union, Srinagar.
29. Sarva Shramik Sangh, Mumbai.
30. Bhartiya Kamagar Sena, Mumbai.
31. National Labour Co-ordination Council, Calcutta.
32. United Trade Union Congress, Bipin Behari Ganguly Street, Calcutta.
33. National Labour Organisation, Ahmedabad.
34. All India Student Federation, New Delhi.
35. All India Youth Federation, Delhi.
36. Student Federation of India, 11, Windsor Place, New Delhi.
37. Democratic Youth Federation of India (CPM), 11, Windsor Place, New Delhi.
38. Akhil Bhartiya Vidyarthi Parishad, Mumbai.
39. All India Democratic Student Organisation 48, Lenin Sarani, Calcutta.
40. Comsomal, Calcutta.
41. Revolutionary Youth Front, 124/C, Lenin Sarani, Calcutta.
42. Progressive Student Union, Calcutta.
43. Progressive Democratic Students Union, Hyderabad.
44. Radical Student Union, Hyderabad.
45. Punjab Student Union.
46. All India Sikh Students Federation, Amritsar.
47. West Bengal Chhatra Parishad, Calcutta.
48. National Federation of Indian Women, New Delhi.
49. Nikhil Banga Mahila Sangha, Calcutta.
50. Islamic Study Circle, Red Cross Road, Opp. Hazi Masjid, Maisuma, Srinagar.
51. Awami Action Committee, J & K.
52. J & K People’s League, Srinagar.
53. Tribal Front, Agartala.
54. All India Muslim Majlis –e- Mushwarat, E-3, Abul Fazal Enclave, Okhla, New Delhi.
55. Tabligh Jammat, Bangle Wali Masjid, Nizammudin Basti, New Delhi.
56. Citizens for Democracy, New Delhi.
57. Nag Vidharbha Andolan Samiti, Nagpur.
58. Marathwada Janata Vikash Parishad Saraswati Bhavan, Sikshan Prasarak Mandal College, Aurangpura, Aurangabad.
59. Maharashtra Ekikaran Samiti, Sahar Samiti Karyalya, Jalti Math, Near Kapil theatre, Kirloskar Road, Bangalore.
60. The Kannada Paksha, 31, Nanje Gowda Road, Mavalli, Bangalore.
61. Dravida Kazhagam, Periyar Thaidal, 50, EVK, Sampath Road, Madras-7.
62. Tamilnadu Toilers Progressive Party, Madras.
63. The Neelchakra, Dolamundai, Cuttack.
64. Dalit Panthars, Wadala, Bombay.
65. Dalit Panthara, Bhawani Path, Pune.
66. People’s Union for Civil Liberties, 8, Sahayog Apartments, Mayur Vihar, Phase I, New Delhi.
67. People’s Union For Democratic Right, Qr. No. 4, IP College, Delhi University, Delhi.
68. All India Insurance Employees Association, Calcutta.
69. All India National Life Insurance Employees Federation, Bombay.
70. National Federation of Indian Railwaymen, New Delhi.
71. Institute of Indian Labour, Calcutta.
72. National Federation of Posts & Telegrah (Shashi Bhushan Group), New Delhi.
73. Indian National Plantation Workers Federation Dibrugarh, Assam.
74. Anand Marg, Calcutta.
75. Proutist Universal, New Delhi.
76. Volunteer Social Service, Allahabad.
77. Seva Dharam Mission, Varanasi, U.P.
78. Education Relief and Welfare Sector, Panditya Road, Calcutta.
79. Anand Marg Universal Relief Team, Calcutta.
80. Universal Proutists Student Federation, New Delhi.
81. Jamat –e- Islami Hind, Dawat Nagar Abdul Fazal Enclave, Okhla, N. Delhi.
82. Rashtriya Swayam Sewak Sangh, Hedgewar Bhavan, Nagapur.
83. Shiromani Gurudwara Prabhandak Committee, Golden Temple, Amritsar.
84. Delhi Gurudwara Prabhandak Committee, Mata Sundri Lane, New Delhi.
85. Anjuman Nasrat-UI-Islam, Srinagar.
86. Jammu & Kashmir Muslim Auqaf Trust, Zero Brigade, Srinagar.
87. Jammu & Kashmir Muslim Auqaf Trust, Srinagar.
88. All India Peace and Solidarity Organisation, K. 1/16, Chitranjan Park, Main Road, New Delhi.
89. Indian Society for Cultural Co-operation and Friendship (ISCUF/CPI), 1, Lady Harding Road, Opp. Marina Hotel, Connaught Palace, New Delhi.
90. All Indo Korean Friendship Association, New Delhi.
91. Indo-China Friendship Association, New Delhi.
92. National Federation of Progressive Writers, 110, Kansal Bhawan, K.G. Marg, New Delhi.
93. Revoked vide SO.824(E).
94. Iranian Students Islamic Association (ISIA) or Union of Iranian Students Islamic Association (UISIA), Bangalore.
95. Indian Youth Congress (I), New Delhi.
96. National Students Union of India (I), 5, Raisina Road, New Delhi.
97. Yuva Janata, New Delhi.
98. Janata Yuva Morcha, New Delhi.
99. Tamir –e- Millat, Hyderabad.
100. Student Islamic Movement in India (SIMI), 151-C, Zakir Nagar, New Delhi.
101. Student Islamic movement In India (SIMI), Aligarh.
102. Mahase –e- Azadi, J&K.
103. Jammat Ahle-e-Hadis, J&K.
104. Rashtra Sevika Samiti, Wardha, Maharashtra.
105. Vishwa Hindu Parishad (VHP), Bombay.
106. Hind Mazdoor Sabha, Bombay.
107. Yuva Lok Dal, 3 Pt. Pant Marg, New Delhi.
108. Dal Khalsa, Chandigarh.
109. Jamat Ahle Hadis or All India Ahle Hadis, 4116 Ahle Hadis Manzil, Urdu Bazar, Delhi.
110. Jammat –e- Islami, Bulbul Bagullah.
111. Deeni Talimi Council, Lucknow.
112. Islamic Welfare Trust, PO Omessary, via Kottuwalli, Calicut Distt.
113. Orissa Gramin Mazdoor Sangh, Santapur Bhubaneswar Distt. Puri (Orissa).
114. All India Confederation of Bank Officer Organisations, Pandyan House, Ferere Road, Bombay 38.
115. Iqbal Memorial Trust, Bemina, Srinagar, Kashmir.
116. All Assam Students Union, Gauhati University Campus, Jhalukhari, Gauhati, Kamrup District, Assam.
117. Assam Jatiyabadi Yuba Chhatra Parishad, Silpukuri, Gauhati, Assam.
118. All India Railway Employee Confederation, 26/12, Railway Colony, Kishanganj, Delhi-7.
119. Kisan Seva Samiti, Chhatarpur, M.P.
120. Ishaat –e- Islam Trust, 1353, Chitli Qabar, Delhi.
121. A.K. Gopalan Bhavan Trust, 27-29, Bhai Veer Singh Marg, Gole Market.
122. Indian National Plantation Workers Federation, Suit 125, 25A, Park Street, Calcutta-16.
123. William Carey Study and Research Centre, Calcutta.
124. All India Agricultural Workers Union, 12 B, Feroze Shah Road, New Delhi.
125. All India Democratic Women’s Association.
125A. All India Democratic Women’s Association, 23, Vithal Bhai Patel House, Rafi Marg, New Delhi.
126. All India Milli Council, 161/32, Joga Bhai, Jamia Nagar, New Delhi-25.
127. All India Youth Leaque, 62 North Avenue, New Delhi.
128. Damdami Taksal, Gurudarshan Prakash, Chowk, Mehta, New Delhi.
129. Akhand Kirtni Jatha.