Bengaluru: A Central Bureau of Investigation (CBI) case against celebrated environmental lawyer Ritwick Dutta is replete with factual errors and misrepresentations but will nevertheless have a chilling effect on environmental litigation in India, experts said.
A core allegation in a first information report (FIR) filed by the CBI against Dutta, 48, on 19 April 2023 is that he uses foreign funds to “take down India’s existing or proposed coal projects”. If found guilty of the charges made, Dutta faces a jail term of up to a year, under the law, or a fine or both.
The offences are "compoundable" though, which means a penalty can be paid, usually a percentage of the foreign contribution received. This means the government can only launch prosecution if the person declines to pay the penalty.
The FIR lists no case where either Dutta in his personal capacity or the trust he co-founded, Legal Initiative for Forests and Environment (LIFE), acted as a petitioner, applicant or appellant before any court or tribunal.
The LIFE trust, founded in 2008, won the 2021 Right Livelihood Award, also called the ‘Alternative Nobel’. Dutta is one of three trustees at LIFE. The others are Rahul Choudhary, a lawyer, and Rakesh Kumar Singh, a wildlife management expert and a member of the state board for wildlife, union territory of Ladakh.
In a statement, Dutta said that neither him nor LIFE had ever been a litigant in any legal case.
It is in his personal capacity as a lawyer, with his own proprietorship firm, that Dutta represents a host of farmers, forest-dwelling communities and fisherfolk, other non-governmental organisations and even retired bureaucrats, Dutta said in this October 2021 interview to Article 14.
Quoting a complaint from Jeetendar Chadha, a director in the union home ministry, the CBI says Dutta received Rs 41 lakh as “foreign contribution” in 2013-14.
The CBI claims Dutta then created a proprietorship firm which received Rs 22 crore from Earth Justice, an American advocacy group, as professional receipt “to take down India's existing or proposed coal projects.”
Dutta’s proprietorship, called Lawyers Initiative for Forests and the Environment, was founded in 2009, not after 2013-14, as the CBI claims.
The CBI charge also includes allegations against LIFE, the trust, which is named as second accused in the FIR, alongside Dutta as the first accused. It says the trust transferred the foreign contributions it received to other non-governmental organisations (NGOs), which, the CBI says, violates the Foreign Contribution Regulation Act, 2010 (FCRA).
In his complaint, Chadha from the union home ministry alleges that “EJ and LIFE were complicit in bringing [foreign contribution] into India “for funding and targeting and stalling development projects, which, he says, is an FCRA violation affecting the “economic security” of India.
Article 14 sought comment from Earth Justice but there was no response. We will update this copy if they do respond.
Over the last five years, the union government has cancelled FCRA licences of over 6,500 non-governmental organisations (NGOs). In April 2022, the Supreme Court upheld amendments made by the government in November 2020 to the FCRA.
“… uncontrolled flow of foreign contribution has the potential of impacting the sovereignty and integrity of the nation, its public order and also working against the interest of the general public,” said the Supreme Court.
The FCRA is among three laws that an international human-rights body—of which India’s National Human Rights Commission is a member—has cited as affecting “civil liberties and fundamental rights”.
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‘Funds In Guise Of Consultancy’
The CBI FIR alleges violation of six sections of the FCRA, pertaining to sub-granting of foreign contributions, restrictions on use of foreign contribution for administrative expenses and diverting foreign contribution for personal gains or undesirable purposes .
The agreement between Earth Justice and Dutta’s proprietorship firm, a copy of which is annexed to the FIR, records that the proprietorship must prepare, among other things, policy briefs on the National Clean Air Programme and the Air (Prevention and Control of Pollution) Act of 1981, track court decisions related to air pollution, prepare reports, develop and host air pollution workshops for civil society organisations.
Yet, the FIR alleges that Dutta “did not appear to have provided any professional service to Earth Justice”, and, therefore, “funds were received for some other purpose under the guise of consultancy”.
The allegation that foreign contributions are misused or used for “anti-national purposes” has been used before by the government in criminal cases related to think tanks, such as Oxfam and Centre for Policy Research, and journalists such as imprisoned Kashmiri editor Fahad Shah.
The CBI’s implication is that Dutta’s organisations used foreign funds to stall coal projects in India.
“Less than 5% of the cases we handle involve coal,” Dutta said, in response to a claim in the FIR that “most of the litigation matters which Shri. Ritwick Dutta handles are (sic) the litigation related to coal excavation/mines and coal plants”.
The FIR mentions no instance of a coal mine or thermal power plant stalled due to litigation undertaken by Dutta or his trust, LIFE.
The FCRA does not bar lawyers from obtaining foreign funding, including for litigation, and approaching the courts is a fundamental right under article 32 of the Constitution of India, 1949.
The Focus On The Adani Group
The FIR also assumes, experts said, that criticising government’s policies is a crime, as are email discussions about litigation strategies against coal operations of the Adani group.
The first reference to the Adani group in the FIR is a case filed by the Kheti Vikas Seva Trust, an advocacy group, against Adani Enterprises Ltd. against the company’s copper smelter in Gujarat.
“On analysis of information available on public domain, it appears that Shri. Ritwick Dutta is involved in agitating local farmers against government policy in Gujarat. Kheti Vikas Seva Trust Vs. Adani Enterprises Ltd,” says the FIR. The CBI presents no evidence that Dutta or his organisation were “agitating” local farmers.
A second reference to the Adani group, the only entity named twice in the FIR, refers to emails between Dutta and Earth Justice about the group’s activities in Australia.
The FIR alleges EJ and Dutta were “discussing projects of Indian entities in foreign jurisdictions which can be challenged there”.
The FIR says “such litigations lead to delay in projects impacting public interest by denying energy security to citizens of the nation. Further, it is also impacting (sic) economic interests of nation (sic) outside geographical boundaries of India”.
It is unclear why the CBI alleges that discussions about litigation are a crime. EJ works on coal litigation within the US too and in other countries, such as Australia and Indonesia.
Article 14 sought comment from CBI director Subodh Kumar Jaiswal, special director Praveen Sinha and additional director Ajay Bhatnagar over email on 3 May, with a reminder on 6 May.
We also sought comment over email on 7 May from Chadha—the home ministry official quoted in the CBI FIR as “complainant”—and Rajesh Kumar Kedia, a commissioner at the Central Board of Direct Taxes (CBDT). We followed up on 13 May, but there was no response. We will update this copy if they do respond.
‘Attempt To Criminalise Environmental Litigation’
“This is a clear attempt to criminalise environmental litigation,” said Gautam Bhatia, a Delhi-based lawyer. “It’s a pity because litigation is a peaceful and non-violent way to dissent against government policies.”
The right to dissent is constitutionally protected, former Supreme Court Deepak Gupta wrote in The Wire in February 2020.
“The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree,” wrote Justice Gupta. “The right to disagree, the right to dissent and the right to take another point of view would inhere inherently in each and every citizen of the country.”
Even if no case is eventually made out against Dutta, it would dissuade others, some said.
“Regardless of the outcome of the criminal case instituted against Dutta, the ‘fear of the process’ initiated against him will be enough of a deterrent for many others seeking to achieve environmental justice in India,” Maitreya Prighwiraj Ghorpade, a lawyer and former LIFE employee, wrote in Bar and Bench on 6 May.
The FIR says that “Dutta is involved in criticising Government Policy and making allegation (sic) against Government of India though (sic) public media.”
“Litigations, against both coal and other development projects, are decided by courts on a case-to-case basis depending on the merits of the case,” said Debadityo Sinha, a senior resident fellow at the Vidhi Centre for Legal Policy, a think tank.
“Criticising government policies, litigating against polluting projects planned in violation of environmental laws, raising awareness about environmental wrongs, etc are constitutionally protected rights,” said Sinha.
Joe Athialy, executive director of the NGO Centre for Financial Accountability (CFA) termed the CBI charge “ridiculous” and said “these cases are filed in Indian courts, filed under Indian laws and if the courts are not finding any violations of laws and policies, why should it stall them? And if there are violations, why shouldn't it stall them?”
The purpose of the FIR, said Sinha, “appears to be to discredit environmental activism against projects which have a history of blatant disregard to environmental norms and rights of local communities”.
Taxes Paid, Yet CBI Says No Services Rendered
Dutta’s proprietorship provided 57 legal opinions and comments to Earth Justice between 2020-2022, according to documents submitted to the CBDT by Dutta as part of related proceedings.
Neither the CBI nor the union home ministry have explained why these opinions and comments cannot be construed as services provided in return for professional receipts received by the proprietorship firm from Earth Justice.
Since these were payments for professional services—and not donations—taxes were paid, details of which are annexed to the CBI FIR. The FIR does not allege tax evasion.
Section 2 of the FCRA says “foreign contribution” excludes “any amount received, by any person from any foreign source in India, by way of fee (including fees charged by an educational institution in India from foreign student) or towards cost in lieu of goods or services rendered by such person in the ordinary course of his business, trade or commerce whether within India or outside India or any contribution received from an agent of a foreign source towards such fee or cost”.
The FIR says LIFE trust received foreign funding for “social” purposes but has used them for “environmental research work which is a deviation from FCRA rules”. Under the Act, there are only five categories: social, educational, religious, economic and cultural.
“How is environmental work not 'social'?” asked Ashish Kothari, co-founder of environmental NGO Kalpavriksh (but speaking in his personal capacity), explaining community rights and livelihoods were closely tied to environmental concerns.
In October 2020, a human rights lawyer and an independent researcher wrote in the website Scroll that “vague restrictions for NGO funding and operations” have a “chilling effect on the constitutionally guaranteed rights to freedom of association, expression and assembly.”
The ‘Weaponisation’ Of FCRA
The CBI also alleges that the LIFE trust transferred foreign contributions it received to other NGOs in violation of FCRA’s section 7, which prohibits such sub grants, an accusation previously made against Oxfam India as well.
The CBI only lists workshops conducted by the trust for these NGOs as evidence for the allegation, without details of direct fund transfers.
In his response to the CBDT, Dutta said payments related to such workshops are made directly to vendors, such as hotels and travel agents.
The FIR points to a violation of a limit on administrative expenses. The FCRA caps administrative expenses at 20% of foreign contributions received. The CBI notes administrative expenses exceeded the limit by Rs. 95,477 in the year 2021-22.
Bhatia, the lawyer, described this as “a minor issue”.
“FCRA, in its present form, effectively makes the functioning of civil society impossible with prohibitions on sub-granting, limits on administrative expenses and a host of other regulations that makes them jump through hoops,” Bhatia said.
He said such restrictions on NGO activities are violations of constitutional rights, such as freedom of speech and expression and freedom of association.
These regulations in general, said experts, have vastly increased the power of the state to police NGOs. Both the regulations that cap administrative expenses and prohibit sub-granting came into force after FCRA amendments in 2020.
The idea behind the FCRA, explained senior advocate Sanjay Parikh, was that NGOs and other organisations could work collaboratively with the government on social issues, such as human rights and environment, with certain regulations.
Foreign funding, he pointed out, “was permitted to be used in activities supplemental to what the government considered necessary in public interest. It was not treated as something against the government".
In environmental litigation, Parikh said, “it’s not that [lawyers or citizens] plead against the project itself; they only question based on issues concerning peoples’ rights and environment. Development must have a human face and sustain the environment, within constitutional parameters”.
(Rishika Pardikar is a freelance reporter based in Bangalore.)
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