India NGO Sector

Introduction

Typically, in democracies, laws regulating non-governmental organizations (“NGO(s)”) provide structure to the non-profit sector, promote transparency and accountability in the administration of the organizations, and attempt to prevent private gain by individuals managing NGOs. Establishing and operating an NGO requires an understanding of the legal issues and regulations that affect a country’s non-profit community. This understanding can be complicated by a federal system where national and state or regional laws differ and where there has long been an active charity network. India is a federal republic with a history of organized charitable work. Understanding the structure of India’s NGO laws requires knowledge of the central and state registration acts and the fiscal laws governing NGOs, as well as the recent and forthcoming changes to those laws.

Legal Requirements to Start an NGO

The right of all Indians “to form associations and unions” is enshrined in the Constitution of India, along with the right of religious denominations to establish religious and charitable institutions, and minority groups to establish educational institutions. There are three types of these associations, or NGOs, in India:

1. NGOs registered with the central government,
2. NGOs not registered with the central government, and
3. political organizations.

For registered organizations, there is no single system of laws or comprehensive central act that uniformly governs the registration and operation of NGOs in India. Rather, there are specific statutes for each type of NGO, which in India’s federal system means different central and state statutes. The state statutes may require different or additional documents to register an NGO. Unlike registration, there are central acts that regulate the financial aspects of all Indian NGOs. Importantly, the Income Tax Act, 1961, grants a tax exemption for NGOs if certain conditions are met and the Foreign Contributions (Regulation) Act, 1976, permits NGOs to receive foreign funding if the organizations follow a specific procedure. Both of these acts have a separate registration process. To qualify for tax exemption eligibility an NGO must be registered under a central or state act.

NGO Registration

The benefits to registering an NGO under a central or state act include:

1. legal recognition,
2. the ability to receive domestic and foreign funding, and
3. the opportunity to seek tax-exempt status.

An Indian NGO may register as a trust, society, or non-profit company. Society is the most common form of NGO in India. An NGO registers with the Charity Commissioner, Registrar of Societies, or Registrar of Companies in the state or region in which the NGO is located. Once registered, to remain in good standing, an NGO must file an annual return with the registering authority. Each type of organization has its own organizational characteristics and registration process.

Trusts

An NGO may register as a public trust. While there is no central act that governs the establishment of a public trust, private trusts are established under the Indian Trusts Act, 1882, which defines a trust as “an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner…” In other words, a trust is a fiduciary relationship in which a board of trustees holds the title to property for the benefit of others. Indian NGO laws recognize only religious or charitable public trusts. A charitable trust by definition under Indian law must benefit the public. Established Indian public trusts include the Public Service Broadcasting Trust, which promotes social responsibility and diversity in broadcasting entertainment, the NAZ Foundation (India) Trust, which caters to underserved communities such as those with HIV/AIDS by providing education and support services, and the Sir Dorabji Trust, which was established by a wealthy philanthropist to support educational institutions and provide funding for NGOs.

Characteristics

There are fewer legal restrictions on the management and administration of trusts than on other types of NGOs. Only two trustees are needed to create a trust and the trustees, who may remain on the board for life, have substantial control over managing the NGO. Trusts are not required to have members or hold meetings. Further, public trusts are irrevocable. However, a trustee may apply to the Charity Commissioner for a declaration that the trust is defunct, moribund, or should be de-registered. Registering a trust also requires less documentation and fewer steps than a society or company. ====Registration====

A charitable trust may be required to register under a state’s Public Trusts Act or, if not, the NGO may register under the Indian Registration Act, 1908. Most states have enacted a Public Trusts Act. Generally, to register a public trust the author of the trust must submit a trust deed that conforms to the requirements of the relevant trust registration act, along with a registration fee, to the state or regional Charity Commissioner. The Charity Commissioner files the trust deed and the NGO is registered.

===Societies===

An NGO may register as a society under the Societies Registration Act, 1860. The Societies Registration Act is an act of the Central Government; however, various states have adopted their own or amended the central act to suit the state’s requirements. A society is “[a]ny seven or more persons associated for any literary, scientific, or charitable purpose.” The governing body of a society is the group of “governors, council, directors, committee, [or] trustees” who manage the NGO. The governing body is elected by the society’s members. The types of NGOs that may register under this act are

1. charitable societies or NGOs that serve the poor and underprivileged,
2. societies established for the promotion of science, literature, or the fine arts,
3. societies for instruction, the diffusion of useful knowledge, or the diffusion of political education, and
4. societies for the foundation or maintenance of libraries or reading-rooms for general use among the members or open to the public or public museums and galleries of paintings and other works of art, collections of natural history, mechanical and philosophical inventions, instruments, or designs.

Established Indian societies include the Rural Economic and Education Development Society, which focuses on child labor, education, and legal issues affecting children, and the Bombay Natural History Society, which is involved in nature and wildlife conservation. ====Characteristics====

Societies have a more democratic structure than trusts and are more appropriate for “grass-roots organizations” that need greater membership involvement. Unlike a trust, the governing body of a society must perform certain duties and the members have participatory rights. For example, the governing body of a society is required to hold annual meetings and periodic elections. Further, members of a society have voting rights and the right to examine the society’s accounts and records. To alter the purpose for which a society has been established, three-fifths of the members must vote to approve the change and the approval must be confirmed by three-fifths of the members present at a “special meeting.” Additionally, to dissolve a society, a vote of three-fifths of the members is needed. ====Registration====

Generally, to register a society, an NGO must submit a memorandum of association containing basic information about the organization, a copy of the rules and regulations of the society, and a registration fee to the Registrar of Societies in the state or region where the society is located. The information contained in the memorandum of association must include the society’s name, the object of the NGO, and the names, addresses, and occupations of the governing body. In addition, three members of the governing body must certify the accuracy of the rules and regulations of the society. Once the memorandum and certified copy of the rules are received, the registrar certifies the NGO as a society.

Companies

An NGO may register as a non-profit company under section 25 of the Indian Companies Act, 1956. The Indian Companies Act is an act of the Central Government that applies uniformly throughout India. A “section 25 company” is a company formed by at least seven people that

1. “promot[es] commerce, art, science, religion, charity or any other useful object,”
2. applies its profits or income to this stated object, and
3. does not pay dividends to its members.

Like a society, a board of directors/executive committee manages a section 25 company. Established Indian section 25 companies include the National Internet eXchange of India, which facilitates domestic Internet traffic, and the Indian Society of Agribusiness Professionals, which serves the farming community. ====Characteristics====

A section 25 company is the least understood, and therefore, least popular type of NGO. Similar to a society, a company must hold annual meetings and periodic elections. In addition, members of a company elect the board of directors and have other rights. Registering as a section 25 company gives the NGO the benefits of a company without the compliance requirements of a for-profit business. Among these benefits, the section 25 company has a separate legal existence from its directors and members, and the NGO enjoys limited liability. The Central Government can revoke or alter the license of a company “as that Government thinks fit” or, like a society, members can vote to wind up the company. ====Registration====

To form a section 25 company under the Indian Companies Act the promoters must first obtain approval of the company’s name from the Registrar of Companies of the state in which the company is proposed to be incorporated. After receiving approval of the company’s name, the promoters must apply for incorporation by preparing and submitting the proper documents to the registrar, along with a registration fee. The required company registration documents include:

1. an application,
2. a memorandum of the company, which must contain the name, the location, and the objectives of the company, and state that the members have limited liability, that each member will contribute to the assets of the company, and the amount of shares the company will initially offer,
3. an articles of association, which states the rules and regulations of how the company will be run, including how shares will be issued, voting will occur, and meetings will take place,
4. a description of the work that is to be completed after registration,
5. a declaration that the documents comply with the law,
6. an estimate of future income and expenditure, and
7. a declaration that the promoters meet the legal qualifications.

After the application for registering a company is submitted, an advertisement and license must be issued. Once the license is granted, the registrar incorporates the company and registers the documents.

Fiscal Treatment of NGOs

There are two main laws that govern the tax treatment and funding of Indian NGOs: the Income Tax Act, 1961, and the Federal Contributions (Regulation) Act, 1976. These acts apply uniformly to all NGOs throughout India. An NGO must register with the Ministry of Finance to seek income tax exemption status and the Ministry of Home Affairs (“MHA”) to accept foreign funding. Once registered with each government office, an NGO must annually file separate reports with each agency. Both acts require NGOs to follow specific registration procedures.

The Income Tax Act, 1961

The Income Tax Act provides for tax exemptions for NGOs. Under section 11, income received by an NGO from property held for charitable or religious purposes and income from voluntary contributions may be tax exempt. The act defines a charitable purpose as “includ[ing] relief of the poor, education, medical relief, and the advancement of any other object of general public utility.” Additionally, income from a business that “is incidental to the attainment of the objectives” of an NGO may be exempt if the NGO maintains separate account records for the organization and the business. Under section 10, the income of scientific research associations, educational institutions, and charitable hospitals may also be exempt from tax. Both sections have similar qualification requirements. a. Qualifying for tax-exempt status For an NGO to qualify for tax exemption under section 10 or 11, the organization must file an application for exemption within one year of creation. In addition, an NGO must spend 85% of its income on its stated objectives within the tax year. In other words, an NGO cannot set aside more than 15% of its income for a given tax year as part of its corpus. Under the Act, this means that 15% of an NGO’s income can be accumulated indefinitely, but any amount exceeding 15% cannot be accumulated for more than five years. Moreover, to qualify for an exemption, an NGO must invest its funds properly, and an NGO that has income in excess of “the maximum amount which is not chargeable to income-tax” must file a verified audit report and a tax return with the income tax department. Under section 11, in certain circumstances an NGO is not entitled to tax-exempt status. If a donation is given for the specific purpose of forming part of the corpus fund of the NGO the contribution is not tax exempt. Additionally, an NGO created to benefit only a particular religious community or caste is not eligible for a tax exemption. Furthermore, there is no exemption for income that directly or indirectly benefits (1) the author or founder of the NGO, (2) a donor who donated more than 50,000 rupees to the NGO, (3) a member of the NGO, or (4) a relative of a member.

b. Applying for Tax-Exempt Status

To apply for a tax exemption under the Income Tax Act, an NGO must submit an application to the Commissioner of Income Tax along with the trust deed or the memorandum or articles of association, and the registration certification from the Charity Commissioner or Registrar of Societies or Companies. The income tax authorities must grant or reject the application within six months. The Central Government may reject or revoke the tax exempt status of an NGO if the organization (1) does not spend 85% of its income, (2) invests funds improperly, (3) applies income to the benefit of a trustee, or (4) fails to file a return.

2. Foreign Donors, Regulations, and NGOs

Generally there are no restrictions on domestic fundraising for Indian NGOs. However, foreign contributions donated to NGOs are controlled by the Foreign Contributions (Regulation) Act, 1976 (“FCRA”). A foreign contribution means money, stock, or a material item that an NGO receives from a foreign source. However, it also refers to an indirect donation that an NGO receives from another NGO which accepts foreign funds. The FCRA applies to any amount donated from a foreign source. Under the FCRA, NGOs can apply for prior permission or registration to receive foreign contributions. Prior permission allows an NGO to accept a one-time foreign contribution and is granted only for a specific recipient, donor, amount, and activity. Registration allows an NGO to receive foreign contributions on a regular basis. An NGO must have been registered for at least three years under a central or state registration act to register under the FCRA. a. Requirements to Receive Foreign Funding

To apply for registration or prior permission to accept foreign contributions, an NGO must complete the required forms and provide certain documents to the MHA with its application. These documents include: (1) a certified copy of the registration certificate confirming it as a trust or society, (2) a copy of the memorandum or articles of association, and (3) the names and addresses of the members of the governing body or board of directors of the NGO.

NGOs must also submit a political or recommendation certificate from a local, state, or national government official, which verifies that the NGO has not had a history of problems in the area in which it is located and that its work benefits the local population. Under the FCRA, applications must be “disposed of” by the MHA within 90 days or 120 days in special circumstances; otherwise, it is deemed to be granted. b. Acceptance of Application to Receive Foreign Funding

If an FCRA application is accepted, an NGO has several continuing obligations. Every NGO registered under the FCRA or that has received prior permission must maintain separate bank accounts and separate financial records for its domestic and foreign funding. Foreign donations can only be kept in one bank account. Additionally, an NGO that receives foreign funds or has an FCRA registration must submit an annual report to the MHA by July 31 of every year. c. Grounds for Rejection of Application to Receive Foreign Funding

The Central Government may reject an FCRA registration or withdraw permission of an NGO to accept any foreign contribution if acceptance “affect[s] prejudicially (i) the sovereignty and integrity of India; or (ii) the public interest; or (iii) freedom or fairness of election to any Legislature; or (iv) friendly relations with any foreign State; or (v) harmony between religious, racial, linguistic or regional groups [sic] castes or communities.” An NGO may appeal a rejection of prior permission or registration within 60 days of the rejection. If registration under the FCRA is rejected, an NGO may apply for prior permission. C. Recent Changes in Laws Affecting NGOs

Most of the fiscal laws governing the non-profit sector in India were enacted before the emergence of the modern NGO. The laws do not require an NGO to make its accounting information publicly available. This has led to a perception by the governments and public in India that NGOS are not transparent or publicly accountable. Adding to this concern is the granting in recent years of tax-exempt status to commercial organizations such as schools and hospitals. As the sector has grown and fears of misuse have arisen, instead of enacting specific legislation to govern NGOs, the Central Government has interpreted or amended the existing financial laws to address these issues. For the most part, these amendments follow the movement of the Central Government toward further restricting tax exemptions and foreign funding opportunities for NGOs in India. Notably, in 2002 and 2006, amendments to the Income Tax Act were passed which modified several provisions of the act that affect NGOs. Additionally, the rules governing the acceptance of foreign funds by Indian NGOs may soon be overhauled. The FCRA Bill, 2006, has been submitted to the Parliament to amend the FCRA. 1. 2002 Amendments

The most pertinent change in 2002 for NGOs tax exempt under sections 10 and 11 was the increase in expenditure requirements. NGOs must now spend 85% of their income in a given year as opposed to the previous requirement of 75%. Further, under the amendments made in 2002, disbursements made to other charities will no longer be recognized as expenditures if the donation came from “accumulated funds.” The 2002 amendments also withdrew the requirement that NGOs with an income greater than 10,000,000 rupees (224,290.68 USD) had to publish their accounts in a local newspaper. Some of the other relevant 2002 modifications affected those NGOs exempt under section 10. The Central Government was given greater authority to withdraw approval of tax exemption or rescind the notification under which the tax exemption was given in certain cases regarding NGOs exempt under section 10. In addition, NGOs registered under section 10 are required to file a return of income if its income “exceeds the maximum amount which is not chargeable to income-tax.” These modifications further narrow the tax exemptions for NGOs and impact the perceived public accountability of the non-profit community. The increased spending requirements make financial management more difficult for NGOs in India and diminish an organization’s ability to build-up capital and become financially independent from donations, particularly foreign donations. In addition, removal of the publication requirement reduces the amount of information NGOs must make publicly available. 2. 2006 Amendments

Of particular concern to NGOs, the changes made to the Income Tax Act in 2006 included a new requirement that anonymous donations contributed to NGOs will be taxed. However, anonymous donations to religious NGOs or to those NGOs having both religious and charitable purposes will not be taxed if the donation is given for religious purposes. Further under the amendments made in 2006, for NGOs exempt under section 11, the 50,000 rupees (1,123 USD) income limit, over which NGOs must file tax returns, was replaced with “the maximum amount which is not chargeable to income-tax.” As of 2006, the maximum amount was 100,000 rupees (2,236.20 USD). These modifications lessen government oversight of NGO finances while further limiting the tax exemption for NGOs. The requirement to file a tax return for NGOs with a certain income arose from the trend of commercial organizations, such as schools and hospitals, gaining tax-exempt status. Raising the limit allows more NGOs to be exempt from filing tax returns, which decreases the amount of information on NGO finances available to the Central Government. While the taxation of non-religious anonymous donations additionally complicates an NGO’s financial funding options. 3. Political Developments and the FCRA

The FCRA has always been controversial. The act was initially designed to prevent interference in Indian elections by foreign influence. As the non-profit sector grew, the FCRA was applied to NGOs, which in India rely heavily on foreign funds. With the rise in terrorist attacks, the Central Government has sought to replace the FCRA to tighten accounting and record-keeping requirements on NGOs to guard against the possibility that terrorist activities could be funded through Indian non-profit organizations with foreign money. In contrast, NGOs have sought to replace the FCRA because of the confusion over and ambiguity of the FCRA’s procedures, time limits, and reasons for denial in obtaining prior permission or registration to receive foreign funds. In 2005 and 2006, the Central Government introduced legislation to replace and amend the FCRA with provisions that contain stricter controls on foreign funds. Beginning in 2005 the government attempted to replace the FCRA with the Federal Contributions (Management and Control) Bill, 2005 (“FCMC”). Unlike the FCRA, the stated purpose of the FCMC was to prevent NGOs from using foreign funds to engage in “anti-national activities.” The provisions of the FCMC were more stringent in many respects than the FCRA. The NGO community raised many concerns about the Bill and the additional bureaucratic requirements organizations would have to satisfy to receive foreign funds. Although news reports in the fall of 2006 indicated that the FCMC was set to pass, in late 2006 the bill was set aside by the Central Government for further review. However, at the 2006 winter session of Parliament the Central Government introduced the revised FCRA Bill, 2006 (“FCRA Bill”), for the purpose of amending the FCRA. Like the FCMC, according to a news report, one of the purposes of the FCRA Bill is to monitor foreign funding to prevent terrorism. The FCRA Bill contains many of the provisions that were written into the FCMC. For example, among other requirements, the bill (1) requires that NGOs re-register every five years and pay a fee, (2) bars organizations of a political nature from receiving foreign funds, (3) prohibits NGOs from investing their corpus funds in securities, and (4) increases punishments for default, including jail.

These provisions place added obligations on NGOs to receive foreign funding. The NGO community is once again raising concerns on what it sees as the negative impact of the FCRA Bill on an NGO’s ability to remain financially viable. As of December 2006, the FCRA Bill was continuing through the legislative process. D. NGO Accountability

It is in the interest of both the Indian government and the non-profit sector to promote the public accountability of NGOs. In recent years, apprehension about NGOs, which can wield large sums of public money, and how they spend their funds has increased. The ability to appear transparent and publicly accountable is complicated for Indian NGOs by the diverse legal structure. NGOs are required to file annual reports with the Income Tax Department, the MHA, and the registering authority that generally contain information on the NGOs income, expenditures, and financial balance. However, the returns filed with the Income Tax Department and the MHA are not publicly available. In addition, depending on the statute, an annual report filed with the registering authority may not be available to the public either. Moreover, there is no legal requirement that NGOs make any of this information publicly available. Although some organizations do voluntarily, most NGOs do not publish account information unless they are required. The non-profit sector has made some attempts to counter this perceived lack of accountability and self-regulate the industry by making NGO information more publicly available and increasing domestic funding for NGOs. For example, the Indian Credibility Alliance (“ICA”) is a group of representatives from various well-established Indian NGOs who have created standards of governance for NGOs to enhance the credibility of the non-profit community. The ICA has created a set of “minimum norms,” “desirable norms,” and “good practices.” The minimum norms include: (1) identity – the NGO should be registered; (2) vision, aims, objective and achievements – the NGO should be able to state its aims and achievements; (3) governance – the NGO should be committed to good governance; (4) operations – the NGO should operative efficiently and effectively; and (5) accountability and transparency – the NGO should make account information available to the public.

Compliance with these standards is voluntary. Other organizations have also attempted similar exercises to certify NGOs. By encouraging the observance of voluntary standards, these organizations hope to ward off additional government regulation and public discontent. III. CONCLUSION

The registration acts for each type of NGO, the income tax and foreign contributions statutes, and the recent amendments to those laws compose the main body of law that govern non-profit organizations in India. The registration acts of the three major types of NGOs – trust, society, and company – give an organization its legal structure and have distinct registration processes. The Income Tax Act and the FCRA provide the NGO with income options and also have registration requirements. The latest modifications to these acts narrow the income tax exemption and foreign funding options for Indian NGOs. While the financial acts impact all NGOs alike, the registration acts do not necessarily apply uniformly throughout India. The law of NGOs in India has developed over many years and will continue to evolve at both the federal and state levels as the governments seek to promote NGO transparency and accountability – an evolution the non-profit sector hopes to influence. REFERENCES

AccountAid India. AccountAble Handbook FCRA, 2002. www.accountaid.net (last accessed Nov. 13, 2006), under “FCRA.”

AccountAid India. “AccountAid on NGO Accounting & Regulation.” http://education.vsnl.com/accountaid/ (last accessed Dec. 13, 2006), under “Comments on FCMC Bill,” Parts 1 – 4.

Agarwal, Sanjay and Noshir Dadrawala. “Philanthropy and Law in India.” In Philanthropy and Law in South Asia, edited by Mark Sidel and Iftekhar Zaman, 115-181. Asia Pacific Philanthropy Consortium, 2004. http://www.asianphilanthropy.org/developments/details.html?ItemId=1852 (last accessed Nov. 13, 2006).

Chandra, Snehlata. Guidelines for NGOs management in India. New Delhi: Kanishka Publishers Distributors, 2003.

Licadho. “NGO Laws & Crackdowns on Human Rights Defenders: International Lessons for Cambodia” (A Licadho Briefing Paper, Sept. 2006). http://www.licadho.org/reports/files/88LICADHOBriefingPaperNGOLaw06.pdf (last accessed Dec. 13, 2006).

Menon, Sreelatha. ““NGOs Cry Foul Over Changes in Foreign Funds Law.” Business Standard 5, (Nov. 27, 2006). Also available on Westlaw at 2006 WLNR 20464134.

Sidel, Mark. “States, Market, and the Nonprofit Sector in South Asia: Judiciaries and the Struggle for Capital in Comparative Perspective.” Tulane Law Review 78 (2004): 1611-1669.

Special Correspondent. “New Bill to replace Foreign Contribution Regulation Act.” The Hindu, (September 29, 2006).

Voluntary Action Network India. “FCMC Campaign.” http://www.vaniindia.org/FCMC/fcmc_index.asp (last accessed Dec. 13, 2006), under “About FCMC bill, 2005.”

Voluntary Action Network India. “FCRA Advocacy.” http://www.vaniindia.org/fcra/index.asp (last accessed Dec. 13, 2006), under “Revised ‘FCRA Bill,’ 2006.”

Voluntary Action Network India. “FCRA Advocacy – Revised ‘FCRA Bill,’ 2006.” http://www.vaniindia.org/fcra/HIGHLIGHTS%20ON%20FCRA.pdf (last accessed Dec. 13, 2006), under “Highlights of Revised FCRA Bill 2006.”

STATUTES (Central Government Web site, if available)

Bombay Public Trusts Act, 1950

Constitution of India, 1950 (http://indiacode.nic.in/coiweb/welcome.html)

Federal Contributions (Management and Control) Bill, 2005 (http://mha.nic.in/fcmc-bill-05.pdf)

Federal Contributions (Regulation) Act, 1976 (http://mha.nic.in/fcra.htm)

Federal Contributions (Regulation) Act Bill, 2006

Finance Act, 2002

Finance Act, 2006

Indian Companies Act, 1956

Indian Registration Act, 1908

Income Tax Act, 1961 (http://www.incometaxindia.gov.in)

Indian Trusts Act, 1882

Madhya Pradesh Public Trusts Act, 1951

Rajsathan Public Trusts Act, 1959

Societies Registration Act, 1860

The Taxation Laws (Amendment) Act, 2006 (http://www.incometaxindia.gov.in/archive/1321gi_15072006.pdf)

Trade Union Act, 1926

External Links

Asia Pacific Philanthropy Consortium (APPC) http://www.asianphilanthropy.org

Financial Management Service Foundation http://www.fmsfindia.org/

Helplinelaw, Indian Bare Acts http://www.helplinelaw.com/docs/bareact.shtml

Income Tax for NGOs http://www.incometaxforngos.org

IndianNGOs.com http://www.indianngos.com

Ministry of Finance, Department of Revenue, North Block, New Delhi-110011 http://finmin.nic.in/.

Ministry of Home Affairs, The Secretary, Ministry of Home Affairs, Foreigners Division, Jaisalmer House, 26 Mansingh Road, New Delhi-110011 http://mha.nic.in/

National Foundation for India http://www.nfi.org

Online Resource Centre http://www.npsonline.net

United States International Grantmaking, Country Information: India http://www.usig.org/countryinfo/india.asp

Voluntary Action Network India http://www.vaniindia.org/inf_bills.asp