Registration of NGOs in India

Introduction

A Non-Governmental Organisation (NGO) is an organisation with a clear and definite social cause or program engaged in activities that seek the upliftment of society. NGOs neither refer to a for-profit business nor form a part of the government. They are state-independent groups that function voluntarily to help society with agendas that include but are not limited to cultural, social, educational, and religious concerns.

These groups associated with social development and welfare can work as an NGO without registration, i.e., NGOs can run with or without getting registered. However, NGOs registered by registration authorities of government can avail financial support. The process of NGO registration is based on the type of the NGO, and it can be registered as a Society, Non-Profit Company or Trust. While there is no single dedicated act in India that deals with the registration of NGOs, there are three acts that guide their regulation:

1. Societies Registration Act (1860)
2. Companies Act (2013)
3. Indian Trusts Act (1882)

The prerequisites to be fulfilled and the process to be followed in each of these three Acts shall be discussed in this article.

1. Registration of an NGO as a Society

An association or a group of individuals combined to jointly determine, deliberate and promote a common cause with no monetary benefits can legally be recognized as a Society. Typically, Societies are registered for the furtherance of scientific, literary, or charitable activities.[1] In India, the Societies Registration Act, 1860 talks about the registration procedure.

Section 20 of the Societies Registration Act, 1860 specifies its applicability and lays down that the following purposes qualify the creation of a Society: [2]

1. Charitable assistance
2. Promotion of literature
3. Promotion of science
4. Promotion of fine arts for instruction
5. Establishment of funds for military orphans
6. Dissemination of useful knowledge
7. Foundation or maintenance of public libraries or reading-rooms
8. Construction of public museums
9. Public galleries of other works of art, such as paintings
10. Maintenance of collections of natural history
11. Assemblages of philosophical and mechanical inventions, instruments, or designs

Procedure for Registration of a Society

Every Society must consist of a minimum of seven or more people. It is pertinent to note that the provisions of this Act are not applied uniformly across the country and are adopted by the respective State governments with/without further amendments. As State Governments manage the society registration, the application for the same must be made to the authorities in the State where the registered Society will be located. Following steps need to be followed:

I. Name Selection

A unique name has to be chosen for the registration of a Society and any similar or identical name shall be disallowed. Further, the selected name must not reflect any patronage of the State or Union governments or attract provisions laid down in the Emblem and Names Act, 1950.

II. Memorandum of Association[3]

The Memorandum of Association (MOA) acts as a charter of society. It must be signed by all the founding members of the society, and the Oath Commissioner, Gazette Officer, Advocate, Magistrate 1^st Class or Charted Accountant, Notary Public must witness the same and provide their complete address along with their official stamp. MOA has to contain the Clauses of Name, Registered Office, Object of Society, and Governing Body Members.

III. Preparation of By-Laws

The Rules and Regulations of Society have to be decided, and must include the clauses on membership, tenure, manner of membership cessation, meeting, composition, power of the members and so on.

IV. Documents

The below-mentioned documents need to be signed and submitted for registration:

1. A cover letter requesting registration.
2. MOA in duplicate and certified copy.
3. List of the society members.
4. Document enlisting the rules and regulations that govern the Society.
5. Affidavits sworn by the office bearers such as the President or Secretary of the Society.
6. Consent letters from the members.
7. Address proof for the registered office.
8. No-Objection Certificate from the landlord.

V. Registration with the applicable Registrar

The signed MOA and the Rules & Regulations must be filed with the concerned Registrar of Societies in the State where the registered office is set up and the prescribed fee must be paid. As the Registrar of Society is an authority under the state government, the fee charged also varies for each state. While national level society can be registered from Union Territory Delhi area, state level societies can be registered from the district headquarters in the area where the office is. It is then up to that Registrar to declare the Society as registered, up on satisfaction that proper documents have been filed with. To ensure that the application does not get rejected, it is advisable that all the necessary documents are arranged before the process of formation and registration.

This process of registering a Society ends with the issuance of the Certificate of Registration, which is a conclusive proof that the registration has been done. Usually, this process of incorporating a society might take around 1-2 months.

The benefits of a Registered Society are that there is limited liability on the members of the Society because the society has separate legal identity. Further, tax benefit can be availed under the Income Tax Act, 1961.

E-registration of Societies

As mentioned previously, the registration of a society is under the ambit of individual state government rules. Anyone who wishes to apply for registration online must visit their respective State government websites and check the registration services. Most of the States in India, such as Telangana, Punjab, Tamil Nadu, Bihar, Maharashtra, Goa, and Haryana among others, have made this registration procedure available entirely online. It must be noted that in the states that have allowed for online application, the applicant does not need to be physically present at the Registrar office. However, few states like Uttar Pradesh and Assam still have not begun online registration services and the applicants must visit the Registrar office of the concerned jurisdiction of the office.

2. Registration of an NGO as a Section-8 Company

A type of NGO established for promoting non-profit activities where the profits created are used to achieve the mission and not distributed into dividends among the shareholders is known as a Section-8 Company. The primary objectives of a Section-8 Company are to achieve non-profitable goals and must fall under the promotion of trade, arts, charity, environmental protection, social welfare, and other relevant areas.[4] Registration and operation of such companies is governed by the Companies Act, 2013.[5] Previously, Section 25 of the Company Act, 1956 used to be the guiding provision; however, Section 8 of the 2013 Act prevails now. Unlike Societies that are governed by individual state amendments, Section-8 companies uniformly abide by the same Act throughout the country.

For the registration of a Section-8 Company, the following mandatory legal requirements must be followed through.

I. Directors

There must be a minimum of three directors for a public limited company and two directors for a private limited with at least one of them being a resident of India.

II. Members

For a private limited company, 200 members is the cap suggested by the Ministry of Corporate Affairs (MCA). But there is no such limit on the number of members for a public limited company.

III. Objectives

Only non-profit objectives are allowed under this Section. The MOA and AOA have to define the goals of the Company clearly. The profits generated shall either be reinvested in Company or be utilized for charity.

IV. Name and Capital

No mandate requires the Section-8 Companies to maintain a minimum paid-up capital. Further, there is no need to affix terms like limited or private limited in their name.

The required documents for the registration of a Section-8 Company are:

1. Identity Proofs (PAN Card or Aadhar Card) and Passport size photographs of the Directors and shareholders.
2. Address proof of the registered office and No-Objection Certificate from the office owner.
3. MOA
4. Articles of Association (AOA)
5. Rent agreement of the Registered Office.
6. Utility bills
7. Digital Signature Certificate (DSC) and Director’s Identification Number (DIN)

Procedure for Registration of a Section-8 Company

After obtaining the DSC and DIN through the Forms DSC and DIR-3, respectively, for the proposed directors, the name of the Company has to be reserved with the MCA. The name chosen must be unique and not be similar to an already existing company name. Form INC-1 is used for reserving the name. Once the name is approved, an application for the Company incorporation has to be filed in Form INC-32 in addition to the AOA and MOA. As approval for the incorporation is received, a license has to be obtained for the Company by submitting the necessary documents in Form INC-12 to the Registrar. Upon obtaining the license, the MCA will then issue a Certificate of Incorporation in Form INC-16, which confirms the Company incorporation. This whole process could take around 3-6 months.

The benefits of registering as a Section-8 Company in India is that there is no minimum capital requirement and recognition as a separate legal entity is available. Further, contributors, or the stakeholders would also enjoy the benefit under the Income Tax Act, 1961. These companies enjoy the transfer of ownership. Lastly, there is no requirement of suffixation of anything to its name, which is not the case with private or public limited company.

3. Registration of an NGO as a Trust

Where there is property involved in an NGO, it can be registered as a Trust. The Indian Trusts Act, 1882 governs the Trust Registration Process.[6] As per this Act, a Trust is created when the author of the Trust indicates their intention to create a Trust and specifies the purpose, beneficiary and that the trust-property is transferred to the trustee. A Public Charitable Trust must be registered with the Sub Registrar office of the Revenue Department in the locality of the Trust office address.

Procedure for Registration of a Trust

I. Name

Firstly, an appropriate name must be chosen for the Trust. The name must not intend any patronage by the State or Union governments and also should not be a part of the restricted list of names under the provisions of the Emblems and Names Act, 1950. It is pertinent to note that there is no restriction as in the cases of Society and Company regarding using names already registered as a Trust in the registrar office.

II. Members

The author/settler and the trustees of the intended Trust have to be determined. While conventionally, there is one settler, there is no defined rule on the same, and it is subject to the decision of the sub-registrar. When it comes to trustees, minimum of two are necessary and there is no cap on the maximum number. There is no prescribed educational qualification to become a trustee. Foreigners, NRIs, or OCI card holders are not eligible to become a member of Trust and only residents of India are.

III. Trust Deed

A Trust deed is a memorandum of Trust, essentially acting as the legal evidence of a Trust’s evidence. The clauses included in the deed are mentioned below:

1. Name of the Trust
2. Settler and Trustee clause
3. Object and Beneficiaries
4. Address of the registered office of the Trust
5. General Body Clause
6. 80G and 12A Certificate application

A signed MOA with a table containing names, and address of all the members must be formulated along with the Rules & Regulations, which include Clauses on membership, meetings, committee/governing body, legal procedures like appointment, removal, or replacement of a trustee, their rights and duties and powers, subscription, etc. The intention of the author/settler must be certain in clear, simple language.

IV. Registration with Sub-Registrar

Trust deed, along with properly attested photocopies, must be submitted with the local Registrar having jurisdiction based on the registered office of the Trust. Two witnesses must carry their identity proofs and be physically present (unless specified otherwise in their respective state laws) with the author of Trust at the registration. The registration fee has to be paid. The Registrar will then retain the photocopy and return the original deed. After the verification of the submitted documents and all the formalities, a registration certificate can be obtained.

Advantages of Trust Registration are that there would be benefits of service tax and entertainment tax from the respective State government and also, tax benefit under the Income Tax Act, 1961. Further, the Section 80G certification provides benefit to the settlers.

Conclusion

This article has attempted to expound on the registration process concerning various forms of NGOs in India, along with throwing some light on the respective benefits of registration. It is understood that irrespective of the various forms and structures (Company, Society, or Trust), the status of an NGO does not change. All forms of NGOs aim to provide aid to those on the underprivileged side of the spectrum and encourage and promote progressive causes that help with society’s well-being and growth. To conclude, it is of utmost importance to understand that registering an NGO in India is a fairly simple process, given that the applicant is cognizant of all the necessary formalities and documents.

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[1] Section 1 of the Societies Registration Act, 1860.

[2] Section 20 of the Societies Registration Act, 1860.

[3] Section 2 of the Societies Registration Act, 1860.

[4] Section 8(1)(a) of the Companies Act, 2013.

[5] Section 8 of the Companies Act, 2013.

[6] The Indian Trusts Act, 1882.

Author: Abhishek Gupta, Senior Associate (assisted by Harshitha Adari)

Disclaimer: The content of this article is intended to provide a general guide to the subject matter and that the same shall not be treated as legal advice. For any queries, the author can be reached at info@samistilegal.in