Legal experts say there may be a violation, but the complainant Hindu IT Cell is not an aggrieved party.
On September 7, the Uttar Pradesh police filed an FIR against journalist Rana Ayyub at the Indirapuram police station. It was based on a complaint by Vikas Sankrityayan, co-founder of Hindu IT Cell, a Hindu supremacist group with a talent for targeted harassment.
Sankrityayan accused Ayyub of “illegally acquiring money from the general public in the name of charity” on Ketto, a crowdfunding website. He added that the Washington Post opinion writer violated the Foreign Contribution Regulation Act, 2010, or FCRA, because she was a “journalist by profession” and was “receiving foreign money without any approval certificate or registration from the government”.
Ayyub was booked under four sections of the Indian Penal Code dealing with dishonest misappropriation of property, criminal breach of trust and cheating. She was also booked under section 66D of the IT Act, which criminalises cheating by personation, section 4 of the Prevention of Money Laundering Act, 2002.
The journalist has raised money for three relief campaigns on Ketto since early 2020 for those affected by Covid, floods and the migrant crisis caused by last year’s lockdown. In an email on August 27, 2021, Ketto told donors of Ayyub’s campaigns that she had raised Rs 2.69 crore, of which she spent Rs 1.25 crore and would pay Rs 90 lakh in taxes.
“The balance funds, after these debts, are still retained by the campaigner,” the platform said, adding that the collection was being investigated by “Indian law enforcement” agencies which suspected that the funds "were not utilised for the purpose for which they were raised”.
Ketto did not disclose if the law enforcement agencies had given the platform any evidence to support the allegations. A questionnaire sent to Varun Sheth, the founder and CEO of Ketto, did not elicit a response.
This is not the first FIR filed against Ayyub this year. In June, the Ghaziabad police booked her for tweeting out a Muslim man’s allegations of assault by a Hindu mob. She had moved the Bombay High Court and obtained protection from arrest for four weeks.
In a Twitter statement on Sunday, Ayyub called the latest FIR “baseless” and “malicious” and maintained that the “entire donation received through Ketto is accounted for and not a single paisa has been misused”.
She implied that the money from the fundraisers had gone into her personal account. “The receipt of donations did not violate any law,” the journalist added. “My accounts and the donations have both been scrutinised by the IT department, and a fair investigation will bring out the truth for all.”
In his complaint to the Ghaziabad police, Sankrityayan didn’t claim to be an aggrieved party, that is, he did not say he had donated money to Ayyub’s fundraisers and, so, had stakes in the alleged FCRA violation.
We contacted Sankrityayan for clarification, but he wouldn’t comment. “Newslaundry is a biased, anti-Hindu news portal,” he declared. “I’m not going to talk to you.”
He, however, told the Print that he had found “proof” for his police complaint.
We put the same question to Abhay Kumar Mishra, the circle officer at the Indirapuram police station. “You should pose this query to the complainant,” he replied. “I can’t comment on whether he is an affected party. We are investigating the case.”
‘There are two violations’
According to lawyer Vikas Pahwa, Ayyub’s fundraisers violated the FCRA on two counts. “First, she did not have a registration certificate from the government,” Pahwa said. “And she seems to have accepted the funds in her personal account.”
Section 11 of the FCRA states that no person can accept foreign contributions unless they “obtain a certificate of registration or prior permission of the central government”.
Pooja Madhan, a chartered accountant at the Delhi firm Pooja Jagdish and Associates, told Newslaundry that FCRA applies to individuals . “As per section 2(1)(m) of the FCRA, “person” includes “an individual”, so the provisions of the FCRA also apply to an individual”, she said, adding that Ayyub was not eligible to receive foreign contributions if she wasn’t registered under the FCRA.
In her statement, Ayyub did not state whether she had prior permission to accept funds from foreign donors, or whether she was registered under the law. Newslaundry reached out to Ayyub as well as her lawyer Vrinda Grover for comment. Ayyub did not respond, and Grover declined to comment.
The FCRA, Pahwa said, was designed to give the government control over foreign contributions. “It crystallises a couple of things,” the lawyer explained, “that if you receive a foreign contribution you have to put it in a special account that the state can monitor. You can’t put it in your personal account. You also cannot transfer that contribution to anyone else.”
On the other point of the controversy – of funds remaining unused in the journalist’s account – Pahwa said the FCRA was silent. “If a person accepts foreign contributions for a particular purpose and a part of it is achieved, it does not mean that the person is under an obligation to return the contribution,” he noted. “He or she can still continue to work on the same lines, especially if the objective is public service.”
As for likely punishment for a violation, section 35 of the FCRA prescribes an “imprisonment for a term which may extend to five years, or with fine, or with both”. “‘Or’ is an important word here,” Pahwa explained. “It is not an ‘and’. The court will not necessarily imprison a violator. It has the option of only imposing a fine.”
‘Enough to initiate proceedings’
Anshu Bhanot, a commercial litigator, told Newslaundry that the way Ayyub raised the money would enable the Indian law enforcement agencies to initiate legal proceedings against her. “The moment money from foreign donors comes into a personal account, only the account holder has control over it,” Bhanot explained. “Ayyub will have to explain what she did with the money. Whether the agencies are able to establish an FCRA violation would depend on the material presented in court.”
The onus to prove the money wasn’t misused, however, would be on Ayyub. “That is the sad part in the judicial system,” he said. “In criminal law the onus is on the prosecution. But the moment a proceeding is initiated, this becomes a theoretical aspect. Even if the case is ultimately quashed, there are no repercussions for bodies like the Enforcement Directorate, the Crime Branch, and there are few precedents for it.”
Sarwar Raza, an advocate who specialises in taxation law and FCRA, said Ayyub could not be charged with violating the law if the donors were Indian citizens living abroad. It would count as a violation only if they were foreign citizens.
“If she accepted the money in personal capacity and was not associated with an NGO with an FCRA licence or did not have prior permission from the government, then there is probably some kind of violation,” he said. “It would help her case if she doesn’t utilise a single rupee from the collections anymore. It would be seen as a bonafide step.”
‘FCRA violations are compoundable’
In May this year, Ayyub announced on Ketto that she had tried to tie up with an Indian NGO that had FCRA permissions. “But owing to restrictions on physical movement during the pandemic and the lockdowns,” she wrote, “we have not been able to find a suitable donor to trust to channelize the benevolence.”
She also declared that her team would be returning the money from foreign donors because of the “hit jobs by propaganda websites targeting our relief work”. “To make sure we do not cause inconvenience to the donors and us,” she added, “I have decided to refund all contributions from foreign donors back to those who donated.”
Raza said Ayyub’s pledge to return money to foreign donors was a sensible decision. “FCRA violations are compoundable,” he explained. “If she has violated any provision, the fact that she claims to have returned the money makes a case for compounding the matter. If your action has violated a law and you undo the act, it can be condoned if you pay a penalty. But the discretion will rest with the government.”
For Bhanot, returning funds to foreign donors would not absolve Ayyub of alleged wrongdoing. “It could be a tricky stand as the courts might interpret this as an admission of guilt or a desperate measure to wriggle out from the criminal liability.”
Anand Mangnale, the former director of Our Democracy, an online crowdfunding platform, said if Ayyub transferred the collections to her own account, she would have to pay taxes. “Even if you’re a journalist, if you pay taxes on the money you raised and explain how you spent it, then it is not a violation of FCRA,” Mangnale said. “The email Ketto sent to her donors, however, claimed she had unspent money in her bank account – and that is a triggering point.”
In her statement, Ayyub said she had paid a “heavy amount of tax on the donations”, directed by the Central Board of Direct Taxes, or CBDT.
Madhan, however, told Newslaundry paying tax on the money would not make a difference. “Since FCRA and Income Tax Act are different laws, paying income tax on foreign contributions will not suo moto lead to complying with FCRA provisions,” she said.
‘Ignorance of law’
According to Raza, FCRA violations were commonplace and often went unnoticed. “But with big amounts or big names, like Rana Ayyub, they won’t,” he said.
Section 3 of the FCRA specifically bars “correspondents”, “columnists”, “editors” of registered newspapers from accepting any foreign contribution. This also applies to “correspondents”, “columnists” and “editors” of a 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 the IT Act, 2000 or “any other mode of mass communication”.
Though this seemingly covers Ayyub, Raza said the journalist could still defend herself by arguing that she didn’t raise the money for any “journalistic activity”.
Raza pointed out that Vikas Sankrityayan, the complainant, wasn’t a donor in Ayyub’s campaign and so did not have a locus standi. “Ideally, it should have been the ministry of home affairs that initiated the proceeding, not an individual with no stakes in the matter,” the advocate said. “This can be an argument in court.”
But Bhanot disagreed. “Anybody can lodge a complaint and highlight an alleged wrongdoing,” he said. “The complainant in such matters would be more of an informant of the alleged offence, and not a complainant who would be allowed to intervene in the trial. In such FIRs, the state steps into the shoes of the complainant and takes over as prosecution.”
Pahwa, on the other hand, argued that Ayyub could defend herself on two counts. “One is the ignorance of law – a plea people make in such cases,” he said. “Rana Ayyub is a renowned journalist, so I don’t know if that plea would work for her. But she can also claim that she raised the money during Covid, when many were suffering and needed help. In those circumstances, she was out to provide aid rather than thinking about compliance with law.”
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