Affidavit & Declaration under Foreign Contribution (Regulation) (Second Amendment) Rules, 2019

Notification dated 16^th September 2019 [G.S.R. 659(E)] issued by the Ministry of Home Affairs (MHA) regarding affidavit to be executed by each office bearer and key functionary and member in the prescribed Proforma has raised several doubts and queries among those already registered under the Foreign Contribution Regulation Act (FCRA) or having Prior Permission or those whose application for registration, prior permission or renewal is still under process. Must every organisation already registered under FCRA or having Prior Permission or those whose application for registration, prior permission or renewal is still under process, submit this affidavit? Read on …

MHA’s Notification can be read at: https://fcraonline.nic.in/home/PDF_Doc/FC_17092019.pdf

What has been amended?

With this Notification of 16^th September 2019, the MHA has further amended the Foreign Contribution Regulation Rules 2011.

Amendment to Rule 9

Rule 9 lays down the process and procedure for applying to MHA for grant of registration or prior permission under FCRA 2010.

Rule 9 has now been amended such that when applying for grant of registration or prior permission under FCRA 2010 every Office Bearer (i.e. Trustee or Member of the Governing Board), Key Functionary (i.e. CEO or Executive Director) and Member (any key stakeholder) must individually execute and submit an affidavit in the prescribed Proforma.

The Affidavit should be on non-judicial stamp paper of Rs.10/- and duly attested by a Notary Public or First Class Magistrate.

Amendment to Rule 12

Rule 12 lays down the process and procedure for applying to MHA for renewal of registration under FCRA 2010.

Rule 12 has been amended in the same manner as Rule 9. Accordingly, when applying for renewal of registration under FCRA 2010 every Office Bearer (i.e. Trustee or Member of the Governing Board), Key Functionary (i.e. CEO or Executive Director) and Member (any key stakeholder) must individually execute and submit an affidavit in the prescribed Proforma.

The Affidavit should be on non-judicial stamp paper of Rs.10/- and duly attested by a Notary Public or 1st Class Magistrate.

Declaration and Undertaking

Additionally, under the heading ‘Declaration and Undertaking’ in Form FC-3A (the online form for Registration under FCRA), Form FC-3B (the online form for Prior Permission under FCRA) and Form FC-3C (the online form for Renewal of Registration under FCRA) the applicant must certify that the office bearers and key functionaries and members fulfill all the eligibility criteria laid out in sub-section (4) of section 12 of the Foreign Contribution (Regulation) Act, 2010.

Conditions prescribed under Section 12(4) of FCRA 2010

When the applicant certifies that the office bearers and key functionaries and members fulfill all the eligibility criteria laid out in sub-section (4) of section 12 of the Foreign Contribution (Regulation) Act, 2010, it means:

1. The office bearers and key functionaries and members are not fictitious or benami;

2. They have not 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;

3. They have not been prosecuted or convicted for creating communal tension or disharmony in any specified district or any other part of the country;

4. They have not been found guilty of diversion or mis-utilization of its funds;

5. They are not engaged or likely to engage in propagation of sedition or advocate violent methods to achieve its ends;

6. They are not likely to use the foreign contribution for personal gains or divert it for undesirable purposes;

7. They have not contravened any of the provisions of FCRA 2010;

8. They have not been prohibited from accepting foreign contributions;

9. The association has undertaken reasonable activity in its chosen field for the benefit of society for which the foreign contribution is proposed to be utilized;

10. The association has prepared a reasonable project for the benefit of society for which the foreign contribution is proposed to be utilized;

11. If the applicant is an individual he/she has not been convicted under any law, nor for any prosecution, or for any pending offence;

12. If the applicant is an association, its directors or office bearers have not been convicted under any law nor for any prosecution, or for any pending offence;

13. The acceptance of foreign contribution is not likely to affect prejudicially:

a) The sovereignty and integrity of India;

b) The security, strategic, scientific or economic interest of the state;

c) The public interest;

d) Freedom or fairness of election to any legislature;

e) Friendly relation with any state;

f) Harmony between religious, racial, social, linguistic, regional groups, castes or communities;

14. The acceptance of foreign contribution shall not lead to incitement of any offence and shall not endanger the life or physical safety of any person.

Are these declarations offensive?

A number of activists are upset with some of these declarations. Others have taken it more philosophically. One must not forget that the regulating authority for FCRA is the Ministry of Home Affairs which deals with internal security and law and order. Besides, even in the corporate word, we do submit declaration about ‘not being of unsound mind’ or ‘not being an insolvent’ or ‘not being convicted for an offence involving moral turpitude’. Hence, if receiving foreign contribution is important to your organisation, your Board Members could be persuaded to cooperate and comply.

What should be declared in the Affidavit?

1. The Chief Functionary / Chairperson / President /Secretary / Chief Executive Officer/Managing Director / office bearer / key functionary / member should provide proof of identity (Aadhaar Number / PAN Card Number / Passport Number / Voter Identity Card Number / Driving License Number) and solemnly affirm on oath that he/she has read and understood the Provisions of the Foreign Contribution (Regulation) Act, 2010 and confirm that all the conditions as stipulated under Section 12(4) of FCRA are fulfilled.

2. He/she declares to undertake reporting to the Secretary to the Government of India, Ministry of Home Affairs, Foreigners Division (Foreign Contribution Regulation Act Wing) about any violation of the provisions of Section 12(4) of FCRA 2010 by the applicant organisation or any of its members or office bearers or key functionaries that comes to his/her knowledge.

3. He/she also declares that submission of any false or misleading information shall be punishable under the applicable law.

Implication of this amendment

1. From the Notification it would appear that this declaration and affidavit needs to be submitted only when:

a) Applying for Registration under FCRA;

b)  Applying for Prior Permission under FCRA;

c) Applying for Renewal under FCRA;

2. As of now it would seem only when exercising any of the above would declaration and affidavit have to be submitted.

3. Organisations already registered under FCRA or having Prior Permission to receive foreign contribution need not do anything as of now.

4. Organisations which have applied for registration, prior permission or renewal prior to this recent amendment may not be able to upload the affidavit or declaration online while the application is still under process. They may call or write to MHA (FCRA) Help desk in Delhi for guidance: Telephone: 011-23077505, email: support-fcra@gov.in