I feel that there is a lot of negativity which comes from some genuine frustrations but also impulsive action. As the situation is fairly complex, it would be useful to stick to the facts only. A lot of new subscribers to this list who might not have context will simply be affected adversely if this continues. My note below is not to undermine the efforts or genuine interests of anyone but to share some clarity around compliance based on some similar experiences.
When Anirudh’s response gives a good sense of FCRA, I just wanted to reiterate the fact that receiving FCRA approval has a 50:50 chance and it is a three-year long process. Clean records, full-time staff and a long list high-impact activities can still lead to a decline if one doesn’t have the right kind of connections. However, an NGO can apply for a prior permission for a one time foreign funding for a standalone activity and the chances of receiving that funding is higher as compared to a regular FCRA approval. Coming from a donor’s perspective as I was dealing with the same issue of funding Indian affiliates for an organization that I worked for, I believe, FCRA should not be compliance criterion for any Indian NGO. Many NGOs that have a much longer history and have done a lot of paid work (and hence in large volumes) with bigger teams (and especially lawyers on the payroll) have failed to acquire FCRA just because of their activities and publications that might have openly criticized a government.
Furthermore, a mission-aligned NGO with FCRA approval can always help another smaller NGO as a fiscal sponsor till the time the latter builds a portfolio with some local grants. This has to be done very carefully so that the funding doesn’t look like a circumvention of FCRA meaning that the entire activities will need to be organized/co-organized by the fiscal sponsor. In real terms, no matter who is involved in the activity, all the work, vendor payments, and even the branding must include the fiscal sponsor. It becomes the said fiscal sponsor’s activity funded by a foreign donor and supported by volunteers or paid contractors from other collectives/NGOs. Considering the hardship (or more of chances of a ballgame) this is probably a model a donor organization like WMF can explore so that individuals or collectives don’t have to pay taxes while receiving any funding. This arrangement might have a compliance cost factor and availability of staff as the fiscal sponsor has to pay its staff and should have the bandwidth to manage the additional work.
Another model that IEEE and many others have explored is allowing nonprofit (and even for-profit companies) to become the grantee. I’m not very sure of the tax exemption part but I believe that a for-profit company can only receive investments (and not grants) and must pay tax. That could be an extra expense but it’s much safer. The actual work must be reported as a work by this company just like the previous situation. IMHO foreign nonprofit donors should definitely have the flexibility (that the grantee profile can range from a not-for-profit society or trust or company to a for-profit company) for their Indian grantees because it’s risky to operate as an NGO in India since the last few years and manage to get FCRA approval at the same time while doing good work. When Wikipedia is all about open knowledge sharing in multiple languages, issues related map/border can work against a grantee and the law enforcement agencies can go behind them.
My request to WMF and AffCom would be to reconsider WMIN’s situation with the lens of FCRA-related compliance issues because FCRA as a compliance factor could jeopardize any smaller Indian NGO.
I have replied on the thread on meta. Copying that content here for reference:
- Anirudh has already mentioned most of the points I also wanted to say. (Check here: https://lists.wikimedia.org/pipermail/wikimediaindia-l/2019-July/014215.html) I will add a few more things here.
- WMF is very very keen on all kinds of legal compliance.
The recent example is the "Germany court order". Surprisingly, possibly
for the first time in Wikipedia history, all the relevent content was
WIPED out from Wikipedia within a day of the court order where only one
person was affected by the content. Compared to that, here in India,
FCRA issue is affecting thousands of organisations in a serious way and
AFFCOM is still not able to understand the FCRA compliance issue.
(Maybe, compared to Indian languages, German language is better
understood by concerned people!!)
- By the way, What was the support given by WMF/AFFCOM to WMIN in the
FCRA matters? Have they provided any consultant or legal help to WMIN.
Or even some high level contacts in the concerned Government office to
put up our case further.
- It will also be interesting to know if by any chance, CIS looses
FCRA, (I sincerely wish that does not happen anytime) AFFCOM/WMF will
remove their affiliation? Read the WMF news article here: https://wikimediafoundation.org/news/2019/04/11/a-german-court-forced-us-to-remove-part-of-a-wikipedia-articles-history-heres-what-that-means/
- Indian Wikipedian community is very very keen on
expenditure, especially wherever they feel that some wrong expenditure
is made (not just by Indian organisation but even when WMF money is
spent) They become very very concerned about it and become very vocal.
Mail thread goes on for months asking for justificaiton of such
expenditure.(eg. check here: https://lists.wikimedia.org/pipermail/wikimediaindia-l/2018-July/013400.html)
Hardly anyone from WMF/AFFCOM comment on it. Compared to that, when
India chapter is not spending any money and doing all zero budget
activities, what could be the problem with it for the community or
AFFCOM or WMF. Actually they should appriciate and should be happy about
saving lots of money and still doing activities.
- The closure of India chapter topic comes up again and
again and some lengthy discussions happen on it. I am referring to one
such mail thread a few years back and specificaly want WMF people to
read my comment that time in a reply to Gerard Meijssen. Please check it
out here: https://lists.wikimedia.org/pipermail/wikimediaindia-l/2014-September/011563.html
- Now that AFFCOM is showing so much concern about the
India activities, it will be better if they can tell us (the stake
holders in this- Indian Wikipedians, volunteers, current and past WMIN
EC members and general WMIN members) the comparision of performance of
affiliates in India namely WMIN and CIS-A2K. What is the expenditure on
various activities, paid staff etc etc. And give us a clear
understanding of where the real objection is. I suppose this should be
with reference to the contract between WMF and WMIN. I read the contract
document again some time back and could hardly see any possible
serious violation of the contract that AFFCOM is referring to.
For now I am not going to get into other issues, but would like to get clarification on the following:
Wikimedia India was first recognized as a chapter in 2011. In 2015, it
experienced difficulties meeting chapter agreement obligations.
Working with the Affiliations Committee and the Foundation, the
chapter developed a plan of action and returned to good standing by
2017. However, between 2017 and 2019 the chapter was unable to secure
a license to act as a fiduciary organization, and is not currently
legally registered as a charity in India to accept funding from the
Foundation. The Foundation and Affiliations Committee both hope that
this licensing and registration can be secured, and that the chapter
will again be eligible for recognition.
AFAIK, the Wikimedia Chapter (Wikimedia India) *is* registered as a charitable society under the Karnataka Societies Registration Act. Therefore, it *is* a fiduciary organization acting in public interest. I would like to hear a clarification on your claims above.
Further, my understanding is that the Chapter has been unable to renew/secure its permissions under the Foreign Contribution (Regulation) Act, which prevents it from receiving funds from foreign sources, including the Foundation. This is not a situation unique to Wikimedia India, as more than 20,000 NGOs nationally faced cancellations of their licenses last year due to reasons that have largely to do with politics rather than compliance related issues.
If the inability of Wikimedia india to secure these permissions is one of the primary reasons for de-recognition, as a founding member of Wikimedia India and as someone who is largely an external observer, it appears to me that the Foundation is choosing to punish the chapter for not having the political clout to retain its license. For most of its existence, the Wikimedia Chapter has been a volunteer-run body with limited expertise in public policy. Can you please clarify whether the Foundation has extended support to the Chapter in form of, for example, contracting a government relations specialists to help renew/secure their FCRA license?
Looking forward to hearing from you.
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