How A False Child Rights Body Report, Rejected By Experts, Govt, Led To Harsh Mander's Legal Persecution

BETWA SHARMA
 
10 May 2024 16 min read  Share

The allegations made by a national child rights body against peace worker and former government official Harsh Mander were refuted by other statutory bodies and the department of women and child development of the Delhi government and shown to be false, but the National Commission for Protection of Child Rights report led to raids, interrogations, and four cases in the next three years and seven months. In what his daughter and lawyer, Suroor Mander, described as “precipitative litigation”, the 69-year-old is fighting cases that were first about running of homeless shelters and then escalated to allegations of financial crime.

Harsh Mander, a peace worker, faces multiple cases and probes by federal agencies/ HARSH MANDER

Delhi: Peace worker Harsh Mander said one of the things he had enjoyed the most in his life was going to the shelters he helped set up for homeless children after he quit the civil service in 2002, hearing them call him “papa” and tell him about their day. 

Of all the allegations levelled against him in the past three years and seven months, the ones that cut the deepest, he said, were about the shelters he helped set up: unreported cases of child sexual abuse by older children at a shelter for boys, exploitation of children for political purposes, poor physical infrastructure, laxity in precautions during the Covid-19 pandemic, and financial irregularities. 

The National Commission for Protection of Child Rights (NCPCR), a statutory body, levelled them following a surprise inspection on 1 October 2020 to Umeed Aman Ghar and Rainbow Khushi Home in south east Delhi, for which Mander’s NGO, the Centre for Equity Studies, CES was a nodal agency. 

Mander later challenged the inspection as being in violation of the inspection rules of the Juvenile Justice (Care and Protection of Children) Act, 2015. The NCPCR never told Mander who made the complaint that led to the inspection or what it said. 

On 4 January 2021, Op India, a right-wing website often called out (here, here and here) for fake news, published the findings of the report in an article titled: ‘Children home run by Harsh Mander’s NGO in the dock as NCPCR inspection reveals child sex abuse: Here are the shocking details’. 

The next day, Kanoongo went on the national broadcaster and made the same allegations, accusing Mander of exploiting children by using them in political protests and teaching them violence. 

The use of an Op India story as a source to persecute those perceived to be anti-government or against Hindu right-wing ideologies was most recently evident in May 2024.The management of a Mumbai school fired its Muslim principal after she ‘liked’ social-media posts criticising Israeli action in Gaza and Prime Minister Narendra Modi. 

Mander would later argue the report being leaked to the media, without him being given a copy, showed malafide intent on the part of the NCPCR. 

Other statutory bodies refuted the NCPCR's report based on inspections carried out between October 2020 and February 2021, the first one by the child welfare committee (CWC) and the district inspection committee (DICO) of the Delhi government as early as 16 October 2020, two weeks after the raid. 

The Delhi Commission for Protection of Child Rights (DCPCR), a statutory body of the Delhi government, countered the allegations point by point, based on enquiries by the CWC, DICO and the state inspection committee. 

These bodies found the shelters were in good condition and the children were well looked after. There was no cover-up of sexual abuse cases, which were reported to the police in 2012, 2013 and 2016, no illegality in attending protests, and no violations of COVID-19 norms. 

Indeed, there was a photo of the NCPCR chairperson from the day of the inspection where he is seen with children wearing masks. 

On the existing multiple sources of funding, which suggested some kind of offence to NCPCR, the DCPCR said in its affidavit, “Clearly, NCPCR does not understand how NGOs fund themselves, and rarely does any NGO have a single source of funding for their operations. The reason that DCPCR feels aggrieved by this jurisdiction over the breach by NCPCR is that it will result in precedents encouraging other Commissions to go down this route.”

The Delhi government's department of women and child development (DWCD) said the “children residing there were found to be healthy and making good progress in terms of their health and education” and recommended that they continue staying there. 

The NCPCR report, shown to be demonstrably false, led to raids by two federal agencies, three years of investigation, allegations of violating the juvenile justice law, money laundering, misappropriation of funds, and the suspension of the licence to receive foreign funds, crippling research and humanitarian work.

Suroor Mander, a lawyer and Mander’s daughter said, “The government is creating litigation to malign the entity.” 

“What it means is that the process is punishment,” she said. “You create a report based on either misrepresentation or false information. That report, using institutional and political pressure is sent to various agencies and those agencies are pressured into starting an inquiry. They will call you five times, 10 times. They can’t close the FIR even if they don’t have material against you because it is politically driven.”

Laws Against Critics 

A staunch critic of the Bharatiya Janata Party (BJP) and Prime Minister Narendra Modi’s government, Mander has spoken out about the loss of secular values, anti-Muslim hate crimes, detention centres in Assam, the handling of the Covid-19 pandemic and opposed the Citizenship Amendment Act, 2019. 

While writing and speaking about the erosion of human rights, the 69-year-old also launched a campaign to meet the victims of hate crimes and organise legal aid. 

In the decade since the BJP came to power in 2014, the government has accused critics, journalists, activists, and academics of committing grave financial crimes and money laundering, as the first part of this story reported

Since 2012, the government has cancelled 20,721 licences that civil society organisations need to get foreign funding, including two years when the Congress Party was heading the government. Close to 5,000 registrations were renewed in the same period. 

Writing in Nature, Yamini Aiyar, who recently stepped down as the president of a leading Delhi-based think tank, the Centre for Policy and Research (CPR), said that academic freedom was never perfect in India, but she “personally witnessed the growing restrictions” during her 15 years at CPR. 

“In September 2022, six institutions, including the CPR, were subject to tax ‘surveys’ that eventually resulted in them having both their FCRA licences and their tax-exempt statuses revoked,” she wrote. “This has left them mired in legal minutiae and struggling to fund their work.” 

In the case of CES, a report that was subsequently shown to be false became the basis of “precipitative litigation”, Suroor Mander said. The police could not quash the cases until the report was shown to be false or sent back for assessing merit, and there was little the courts did in the meantime. 

“The house of cards is relying on this one false piece of evidence, but until that gets questioned, no court would be motivated to take down a criminal trial because they would feel the agency would have some merit in investigating,” she said. “It signals the collapse of the judiciary that they are not willing to bite the bullet and say something is wrong here.”

Cases Against Mander

The first first information report (FIR) was registered on a complaint by the NCPCR at the Mehrauli police station in New Delhi on 4 February 2021, less than three weeks after some police officials from the same station came and spoke with 28 children on 14 January 2021.

One of the police officials wrote in the inspection register of the shelter before leaving: “All kids are happy here & they are living quite happily out here…The staff has (sic) also very cooperative. Well-maintained, cleaned, discipline (sic) structure.”

The Economic Offences Wing (EOW) registered another case on 18 February 2021, quoting findings from the report. Using the EOW case as the predicate offence, the Enforcement Directorate (ED) registered a third on 21 June 2021. The CBI registered a fourth on 31 January 2024. 

Mander’s home and the office of his NGOs, CES and the Aman Biradari Trust, were raided by the ED on 16 September 2021 and the CBI on 2 February 2024. He has been summoned for questioning twice by the CBI and once by the ED. 

The investigators have alleged discrepancies in the number of beneficiaries at the shelters for homeless children, lack of clarity in utilising funds from government and private associations, and CES receiving foreign funds in violation of the Foreign Contribution Regulation Act (FCRA), 2010. 

The Delhi police FIR was related to the condition of the homeless shelters, and the EOW case was about the use of government funds in accordance with the laws and schemes. The ED expanded the scope of the investigation even further. 

The ED alleged that Mander received kickbacks from buying a large amount of rations from certain vendors during Covid-19 and bought a house in Gurgaon. Mander replied that all vendors were paid via bank transfer and checks, and the sources were explained. There were no kickbacks, and he bought the property by selling a family property and taking out a loan, which he was still paying. 

In petitions filed before the Delhi High Court for quashing the FIRs because they were “malafide” and “malicious”, Mander said the allegations were based on investigators misreading the laws and the information CES gave them during the investigation with the intent to harass and intimidate him. 

After so many months of investigation, no chargesheet has been filed in any case. As per Mander, three investigators have come and gone in the case registered by the EOW. 

The next hearing of Mander's petition challenging the EOW FIR is on 15 May, three months after the last hearing in February. Three other challenges also have four to five months before hearings. 

“They cannot close the case even though they now have enough material to show that what NCPCR sent to them was not absolutely correct and there is material from the departments and from the NGO to prove there was no corruption,” said Suroor Mander. “So what happens, you have to go to court. Then, hopefully you get a judge who is then willing to hear it on merits and pass orders.” 

“But we are not in a climate, and you may see that in other political matters as well, both NGOs and political parties, you don’t get a stay on investigation,” said Suroor Mander. 

“The courts are of the opinion that investigations will lead to your innocence. But that is not how it happens in fact,” she said. “What happens is that the investigation may not lead anywhere, but not effort is made to close the investigation unless it gets back to judicial order. And to get a judicial order takes years.” 

Mounting A Challenge 

On 3 February 2022, CES filed a petition in the Delhi High Court to quash the “prima facie false” FIR of the EOW, saying the petitioner "is being made to face the rigours of a criminal trial even when there are cogent reasons that there is no prima facie case”.

The “mala fide and arbitrary nature” of the NCPCR report on which it was based was also challenged in the high court. 

The petition said CES was the “nodal agency” of the Delhi government's ‘Every Child Campaign’ program, but the Association of Rural and Urban Needy (ARUN) and the Rainbow Foundation of India (RFI) carry out all fund management and program decisions.

Specifically, the petition said that the alleged discrepancy in the number of beneficiaries in Umeed and Khushi given by CES and the department of education was because the financial support for children under the Delhi government's Samagra Shiksha Abhiyan (SSA) program was for children between the ages of 6 and 14, but children ages 6 to 18 lived there. The number of children falling in the age group of 14 to 18 caused the discrepancy.

The petition refuted the alleged discrepancies in the utilisation of government funds given to the homes, noting that the memorandum of understanding between the government and the NGO is based on a reimbursement system. The amounts stated by the EOW were the budgeted amounts by SSA, but it is the actual amount of funds claimed that are reimbursed. 

“This alleged discrepancy has arisen due to misreading of information provided to NCPCR by the Petitioner and misrepresentation of facts,” said the petition. “The NCPCR shows a deliberate lack of understanding on how government bodies allocate funds.”

The petition said the same applied to funds received from the Delhi Urban Shelter Improvement Board (DUSIB). 

On 6 November 2020, a month after the NCPCR inspection, DUSIB informed NCPCR that it does not fund the children’s home but rather two recovery shelters for adults in Delhi.

The petition said that CAN ASSIST was a private body that had not transferred any money from the homes after 2015-2016. They had never complained about the mis-utilisation of funds.

On the allegation that CES did not disclose that funds were coming from ARUN and RFI, the petitioner said that both directly provided funds to the homes and reported them to the reporting authority. 

Challenging FCRA Suspension 

In June 2023, the MHA cancelled the FCRA licence for CES, saying foreign funds were received in violation of sections 3, 8, and 12(4)(a)(vi) of the Act; specifically, Mander received Rs 12.64 lakh from FCRA account of CES from 2011-12 to 2017-18 as payment for his writings and paying other writers.

Section 3 prohibits the acceptance of foreign contributions by individuals such as correspondents, columnists, cartoonists, editors, owners, printers, and publishers of registered newspapers. Section 8 says that organisations shall utilise contributions for the purposes for which they have been received. Section 12(4)(a)(vi) says the government will grant a licence to a person who is not likely to use the foreign contribution for personal gains or divert it for undesirable purposes.

They alleged that Mander’s other NGO, Aman Biradari, was a non-FCRA organisation, and CES served as a conduit for transferring foreign contributions to non-FCRA associations. Section 7 of the FCRA prohibits the transfer of a foreign contribution to another person.  

In a writ petition filed in the Delhi High Court on 9 December 2023, the petition said the FCRA suspension order referred to a report on CES's activities, but the petitioner had not received the report, hampering the right to seek legal advice and prepare a comprehensive response. 

The petition said the central government renewed the FCRA license in 2016 without any discrepancies until then. 

The petition said that CES never paid a foreign contribution to Mander. It said the exception carved in explanation 3 to section 2(1)(h) of the FCRA—the definition of foreign contribution—excludes any payments made towards fees or services rendered by the person.  

“Payments made by CES to Mander were towards duties performed by him as a researcher for outputs during the period in question. Some of the columns he might have written are for purposes of dissemination of studies conducted by him which have been wholly or partly funded by the petitioner—which cannot be extrapolated loosely to be a violation of section 2(1)(h) which must be strictly construed,” the petition said. 

The petition said that Mander was not a columnist or correspondent, and therefore no violation of section 3 by CES. It follows there was no basis for alleging misuse of foreign contributions under section 8 or under section 12(4)(a)(vi) of FCRA 2010.

The petition said that foreign contributions had been paid to three individuals who co-authored articles with Mander and the money they received was also covered under the exception under explanation 3 and not in violation of section 3. 

“Payments made by CES to these individuals are all towards services rendered by them to CES as per their consultancy contracts or engagement letters,” the petition said. “Their specified services or terms of reference for CES do not include writing articles in any newspapers. Sometimes articles are also included with the specific purpose of disseminating the findings of the research.” 

While making the same arguments about payments made to members of the governing board, the petition said the suspension order “takes two independent items of information and conflates these without any valid factual or lawful basis to create the illusion of violation of sec. 8 and sec 12(4)(a)(vi) of FCRA 2010, when in fact no such violation is made out”.

On the allegation of acting “as a conduit for the transfer of foreign contribution” to non-FCRA associations in violation of section 7, the petition said that foreign contributions under section 2(1)(h) include only money, material, or securities received from a foreign source, and the FIR does not provide details on when and where foreign contributions were passed on to non-FCRA associations. 

On the allegation that various donors have given foreign contributions for purposes beyond the trust's objectives, the petition said that it was not a trust but a registered society and no details of the above allegation were given. 

“The petitioner categorically and emphatically denies that any of our activities in any way are prejudicial to the sovereignty or integrity of India,” the petition said. “On the contrary, the central mandate of the petitioner organisation is to advance and deepen public policy in ways to confirm with the values and mandate of the Constitution.”

Challenging the CBI FIR 

In a writ petition filed on 9 April 2024 to quash the CBI FIR registered various sections of the FCRA, the petition said a seven-and-a-half-month inquiry had revealed no cognisable offence, and the FIR was vague and filed without any application of mind to the legal provisions.

The petition said no details were provided regarding the allegation that CES had transferred money from its FCRA account to an individual's account in 2020-2021 in violation of the FCRA 2010. As per the petitioner’s own review, the money was transferred to the account for administrative purposes, including COVID relief, specifically ration kits for the needy. 

“As such, there is nothing illegal about these transfers which are within the purview of uses of the FCRA funds and were alone utilised for urgent Covid relief work,” the petition said. 

The petition said no details were provided for the allegation that CES diverted Rs 10 lakh from its FCRA accounts to firms: “This allegation is so vague that it cannot possibly make the basis of a criminal investigation.” 

“It is pertinent to reiterate that it is not an FIR/RC filed in any kind of haste but the result of a seven-and-a-half-month preliminary inquiry. The FIR is clearly intended to harass and humiliate the petitioners and without any legal standard, and this deserves to be quashed.”

The Older Case 

After Mander moved the Delhi High Court against the hate speeches made by BJP leaders in February 2020, an organisation called the Lawyers Voice filed an intervention against his tweet about civil disobedience against the citizenship bill, saying it was seditious and an FIR should be registered against him. 

When Mander withdrew his petition in July 2021, rendering the intervention infructuous, the Lawyers Voice filed a fresh petition against him and about 60 other people, including the Gandhi family and AAP leader Manish Sisodia. 

More than four years after the riots, the hate speech petitions filed by rival groups remain pending, as does Mander’s intervention before the Patiala district court in October 2021 for registering an FIR against the BJP leader Kapil Mishra. 

Suroor Mander said, “The court asked them why they are not registering a case against Kapil Mishra. The police have not filed a status report.”

You can read the first part on the prosecution of Harsh Mander here

(Betwa Sharma is managing editor of Article 14.)

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