The case of whistleblowers and their protection

The law to protect whistleblowers already had many holes. Now amendments have been proposed that can further dilute it

shishir

Shishir Tripathi | July 11, 2015


#whistleblowers   #corruption   #TSR Subramanian  


Governance is 5 percent policy and 95 percent implementation,” former cabinet secretary TSR Subramanian writes in his book,  The Road to Good Governance. He would know, for he has been among the most experienced administrators.

It is in the course of implementation, then, that most troubles arise. Corruption, for an example. When an honest officer notices the wrongdoing, he or she has a choice: either ignore it, or raise an alarm. Becoming a whistleblower, however, is fraught with danger. The officer is likely to be victimised by vested interests. The officer, working as part of the ‘system’, gets all protection; but is reduced to a lone warrior as soon as he voices his concerns on corrupt practices.

The ‘unnatural’ death of Karnataka cadre IAS officer DK Ravi in March once again highlighted the need for an effective whistleblower protection mechanism.

The 2009 batch IAS officer was found dead on March 16 at his home in Bengaluru. Ravi was known for taking on the powerful mining mafia in Karnataka. The state government rejected any hint of foul play in his death, clearly stating it as a suicide due to personal reasons. Later, it buckled under demands for a CBI inquiry into his death. Whether there was any foul play is yet to be established. 

Equally ambiguous was the death of Indian engineering service (IES) officer Satyendra Dubey. Before he was killed in 2003, Dubey had written a letter to the prime minister exposing huge corruption in the golden quadrilateral corridor project. According to CBI, which investigated the case, Dubey was killed in an alleged robbery which he tried to resist. Whether his murder was linked to his whistleblowing act could never be established officially, though it is widely believed that the letter to the PMO was leaked and had become the trigger for his killing at the hands of the road contractor mafia in Bihar and Jharkhand. His death, it seems, will always be shrouded in mystery.

Shortcomings in the Act

The Act does not permit a whistleblower to complain about acts of corruption, wilful abuse of power or wilful misuse of discretion or offences committed by the prime minister or a chief minister.

Lokpal and lokayuktas will have no role in the scheme of the Whistleblowers Act.

The law does not recognise whistleblowing against human rights violations and unlawful acts affecting environment, public health and safety as valid.

The Act does not specify a procedure for inquiring into complaints on acts of corruption, wilful abuse of power or wilful misuse of discretion or offences committed by members of the lower judiciary because the inquiry procedure that other competent authorities will adopt under Chapter III of the Act is not suitable for the lower judiciary.

Many states have not established the institution of lokayukta or state vigilance commission. Where such bodies do not exist, the law permits the state government to designate any authority to inquire into complaints of wrongdoing and protect the whistleblower. This is an unsatisfactory arrangement because these bodies are likely to be government-controlled and their effectiveness in inquiring into complaints and protecting whistleblowers may be compromised.

There is no time limit for the competent authorities identified in the Whistleblowers Act to complete inquiries into whistleblower complaints. This is left to the respective governments to stipulate in the rules using their rule-making power. This may lead to endless delays and pendency of complaints with the competent authorities.

The Act, however, does not include a definition of ‘victimisation’ of the whistleblower despite the parliamentary committee recommending one.

The Act does not contain any mechanism for protecting RTI users who turn whistleblowers despite the parliamentary committee’s recommendation that such a mechanism be included in the law.

The Act does not protect persons who volunteer to give additional information related to a whistleblower complaint that is under inquiry.

The Act does not cover the private sector despite the second administrative reforms commission recommending its inclusion in a comprehensive whistleblower protection law.

The Act does not permit a whistleblower to publicise the allegations of wrongdoing and related facts through the media when authorities fail to take adequate action on a complaint.


Shanmugam Manjunath, an Indian Oil Corporation Ltd (IOCL) officer, was murdered in 2005 for sealing a petrol station in Lakhimpur Kheri, UP, that was selling adulterated fuel. He was just 28. What had disturbed him even more was the realisation that the petrol was mixed with kerosene meant for the poor.

In all these cases three things were common. One, all three officers came from humble backgrounds and had joined the most coveted services of the country through sheer hard work. Two, they all refused to buckle down under pressure from organised mafia and racketeers, and stood up against corruption. The third similarity, and the most unfortunate one, was that all three died at a young age under mysterious circumstances.

In the case of Manjunath, it took almost a decade for the perpetrators to be punished, but those in higher positions who let this happened went scot-free.
The killings of a host of honest public officials led to the passing of the Whistleblowers Protection Act, 2011, which provides a mechanism to investigate alleged corruption and misuse of power by public servants and also to protect anyone who exposes alleged wrongdoing in government bodies, projects and offices.

The bill was passed by the Lok Sabha in December 2011 and the Rajya Sabha in February 2014. It received the president’s assent on May 9, 2014. But the government is yet to notify it because it has failed to frame the rules necessary for its implementation. A host of amendments was moved by the previous government while its implementation was awaited, which further reflects the lackadaisical attitude of governments in providing safeguards to honest public officials. 

Anjali Mullatti, co-founder of the Manjunath Shanmugam Trust which fought the case for over nine years after Manjunath was shot dead in November 2005, says, “Certainly a lot of such officers come from the public sector or government entities – which just do not take care of their own people. Manjunath was an IOCL employee; murdered by an IOCL dealer; for malpractice in IOCL distribution. Who should have been the champion? IOCL. They have been criminally lax and negligent.”

She adds, “When we travelled from Mysore to Lakhimpur Kheri – where the trial was to start, we found that IOCL which had a legal team in Lucknow, 150 km from Kheri, had not even visited the lawyer they had appointed – in February 2006, three months after the murder.”

One of the proposed amendments takes away the right of any public servant, person or NGO (henceforth ‘any person’) to make a public interest disclosure (that is, a whistleblower complaint) about corruption, wilful misuse of power or wilful abuse of discretion or criminal offences committed in a public authority if it will prejudice the country’s sovereignty and integrity and the security, defence, scientific, economic or strategic interests of the state.
Commenting on the proposed amendments Mullatti says, “The Whistleblowers Protection Act is a good start, but without the proposed amendments. They’re vague, anything can be interpreted as harmful to the nation’s sovereignty. Some of the biggest scams have been in defence procurement, for example.”

Venkatesh Nayak, from the Commonwealth Human Rights Initiative, in his thorough analysis of the amendments and its implications states, “The ‘national security’ related grounds are so broad that a public authority may connect any whistleblower complaint to these interests and prevent competent authorities like the CVC (central vigilance commission) from inquiring into it. These grounds are copied from the RTI Act which is itself under threat of dilution. As the proposed amendments do not contain any other mechanism for inquiring into complaints belonging to this category, it appears that the government is willing to throw them all into the dustbin. This is a blatant negation of the twin principles of ‘rule of law’ and accountable governance that underpin our constitutional democracy.”

Proposed amendments and likely impact

The Lok Sabha on May 13 passed a bill to amend the Whistleblowers Protection Act, even as the opposition objected and walked out. (A day later, the supreme court also criticised an amendment, observing that a whistleblower cannot be punished for divulging confidential documents if he has acted in public interest). The bill, however, is likely to face resistance in the Rajya Sabha. The amendments, critics say, further dilutes the law and makes the whistleblower vulnerable.

Here are some of the salient points in amendments, analysed by Venkatesh Nayak of CHRI:

The ‘national security’ related grounds are so broad that a public authority may connect any whistleblower complaint to these interests and prevent a competent authority like the CVC from inquiring into it. These grounds are copied from the RTI Act which is itself under threat of dilution. As the proposed amendments do not contain any other mechanism for inquiring into complaints belonging to this category, it appears that the government is willing to throw them all into the dustbin. This is a blatant negation of the twin principles of ‘rule of law’ and accountable governance that underpin our constitutional democracy.

The designated authority is empowered to certify that any information that a competent authority may call for or summon during the course of an inquiry relates to ‘national security’ grounds. As this certificate is to be treated as binding and conclusive, the competent authority will have to proceed without access to these restricted records or drop the inquiry into the whistleblower complaint altogether. Thus the proposed amendments empower the government to frustrate inquiry into a whistleblower’s complaint at every stage on grounds of ‘national security’.

According to the Whistleblowers Act, the prime minister is the ‘competent authority’ to launch an inquiry into a whistleblower complaint against his/her ministers. Similarly, chief ministers are the ‘competent authorities’ in states to inquire into whistleblower complaints against their ministers. The procedure for inquiry described in the Whistleblowers Act is common to all competent authorities. If the new amendments are approved by parliament, the PM and the CMs will have to seek clearance from the designated authority of the department/ organisation before inquiring into whistleblower complaints related to national security. So even an under-secretary grade officer, if appointed as the designated authority, can, in theory, prevent the PM or the CM from ordering an inquiry into a whistleblower complaint if he/she certifies that the matter relates to ‘national security’. This is the ridiculous implication of the amendments.

Clause 4 of the Whistleblowers Act permitted a bureaucrat to make a public interest disclosure about corruption, wilful misuse of power or wilful abuse of discretion without fear of prosecution under the Official Secrets Act, 1923 (OSA). The proposed amendments seek to drop the reference to OSA from this clause. This will effectively discourage any bureaucrat from coming forward to make a public interest disclosure even about wrongdoings that have nothing to do with national security. The potential for victimising a whistleblower is built into this provision even though the whistleblowers Act’s stated aim is to prevent such victimisation of persons who speak the truth. This amendment trashes the principle of ‘safe option to silence’ which should underpin all whistleblower protection laws.

If the restriction related to cabinet papers is approved by parliament, a potential whistleblower has no option but to obtain copies of these records by making a request under the RTI Act if he/she wants to attach them as evidence of his/her complaint. No other whistleblower protection law in the world contains such a restrictive provision.

If the ‘national security’ ground for prohibiting inquiry by competent authorities is approved by parliament, they are likely to send every complaint to the designated authority in the concerned department/ organisation for vetting in order to play safe. As the amendments do not prescribe any time limit for issuing clearances, whistleblower complaints may gather dust on the designated officers’ desks instead of being inquired into in all earnestness.


Apart from the proposed amendments which are meant to dilute the law, there are flaws in the Act itself which does not follow international standards. For example, it does not recognise whistleblowing against human rights violations and unlawful acts affecting the environment, public health and safety. This remains a major flaw, despite a strong demand by the civil society for their inclusion. Nayak says, “Take the killing of 20 tribal men in Chittoor on April 7. If one of the members of the special task force that killed these men wants to bring out the truth, he cannot do so as it is [a case of] human rights violation.”

In the last few years, whistleblowing has become an accepted way of exposing malpractices in public affairs, across the world. While no such discussion can take place without the mention of Edward Snowden, the American computer professional who leaked classified National Security Agency information to the media, former Ranbaxy executive Dinesh Thakur, went on to receive several awards and '244 crore for blowing the lid off the corruption at the pharmaceutical giant. Pleading guilty to all seven felony charges by the US Food and Drug Administration Ranbaxy had to cough up a $500-million fine in June 2013.

While such fines and rewards are at some distance in India, a strong mechanism to protect whistleblowers is the least that we can hope to achieve in the near future.

 

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