In a 2010 case, it welcomed sharing info with lawyers, media
Venkatesh Nayak | September 18, 2014
Once again the issue of whistle-blowing on corruption and impropriety, and protection for individuals who blow the whistle is in the limelight. This, even as the central and state governments and the central vigilance commission (CVC) drag their feet over operationalising the Whistleblowers Protection Act, 2011 enacted in May 2014.
In a country where whistling and making catcalls at women are often dismissed with a wink and an uncivilised justification - "boys will be boys", can and should whistleblowers come forward to serve the national motto 'satyameva jayate' (truth alone triumphs) by risking their lives and reputation openly?
Will the administrative edifice erected over the foundation of the rule of law rise to protect them or is the foundation itself so shaky that whistleblowers will prefer the alternative of remaining silent in the face of apparent violation of the law, rules and code of ethical conduct? Should we only demand that Caesar's wife be above reproach or should we hold Caesar himself to task for his alleged misconduct? Those are the big questions at the centre of the latest controversy over the disclosure of what is alleged to be a register of visitors' entries reportedly maintained at the official residence of the director of the central bureau of investigation (CBI).
Pressing for the disclosure of the identity of the whistleblower: it ain't cricket
In an age when the de facto national sport itself is often plagued by controversies of match-fixing, can anything else be expected to be a gentleman's game (with sincere apologies to all women who also play and love that sport)? After all, the concept of the rule of law that must underpin our governance structures and decision-making processes, particularly, the enforcement machinery, is a recognition of that very principle – society agrees on a set of rules to govern itself and every person is expected to abide by them for an orderly way of life. However, when a finger points to those not playing by those very rules they are meant to enforce and abide by because of their near monopoly over power, should the wrong-doing become the umpire's focus or should his/her preoccupation be about the size, shape, colour and motivation of the finger? Unlike in cricket there is no third umpire to decide this case of ‘register-gate’ without fear or favour.
In its daily order dated September 8, the hon'ble supreme court recorded the Petitioner Society's averment that some unknown persons came to the residence of its lawyer and handed over the original entry/guest register of the residential establishment of the CBI's director. The hon'ble court directed that the said register be kept in sealed cover. (see: http://courtnic.nic.in/supremecourt/temp/ac%201066010p.txt). Yet there are umpteen media reports splashing the names of some individuals who are said to have met the CBI director again and again over several months. These reports display scanned portions of the alleged register as proof. We have no way of ascertaining the veracity of these claims except to wait until the court rules on the authenticity or otherwise of the alleged register. If this is the fate of the contents of a sealed cover, how much faith should be placed in its ability to protect the identity of the whistle-blower if its disclosure were also made mandatory, albeit in sealed cover?
With the greatest respect to the wisdom of the apex court, a bigger question that all citizen-taxpayers must raise is what purpose will disclosing the identity of the whistleblower serve to the adjudication of this case. What the apex court said about the noble and courageous act of whistle-blowing four years ago is worth recalling here. In the matter of Indirect Tax Practitioners Association vs R K Jain [(2010) 8SCC 281] a two-judge bench of the apex court recognised whistle-blowing as a legitimate exercise, necessary to a democracy that is underpinned by the principle of rule of law, in the following words:
"23. At this juncture, it will be apposite to notice the growing acceptance of the phenomenon of whistleblower. A whistleblower is a person who raises a concern about wrongdoing occurring in an organization or body of people. Usually this person would be from that same organization. The revealed misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues)."
"Most whistleblowers are internal whistleblowers, who report misconduct on a fellow employee or superior within their company. One of the most interesting questions with respect to internal whistleblowers is why and under what circumstances people will either act on the spot to stop illegal and otherwise unacceptable behavior or report it. There is some reason to believe that people are more likely to take action with respect to unacceptable behavior, within an organization, if there are complaint systems that offer not just options dictated by the planning and controlling organization, but a choice of options for individuals, including an option that offers near absolute confidentiality. However, external whistleblowers report misconduct on outside persons or entities. In these cases, depending on the information's severity and nature, whistleblowers may report the misconduct to lawyers, the media, law enforcement or watchdog agencies, or other local, state, or federal agencies. In our view, a person like the respondent can appropriately be described as a whistleblower for the system who has tried to highlight the malfunctioning of an important institution established for dealing with cases involving revenue of the State and there is no reason to silence such person by invoking Articles 129 or 215 of the Constitution or the provisions of the Act".
In the above case the petitioner body, CESTAT, had accused the respondent of committing contempt by publishing articles about its poor functioning. Interestingly, the same lawyer in this case is appearing for the Petitioner society in the ‘register-gate’ matter. In the 2010 case the apex court recognised that whistle-blowers will not come forward if there are no complaint systems that offer “near absolute confidentiality”. The court also recognised whistle-blowing to lawyers as legitimate, especially in cases where the matter is of such grave and serious nature. If the alleged diary is truly a record of the meetings of the head of CBI with persons involved in or closely related to cases that were under its investigation, what option does the individual who had access to the alleged diary have but to go to a lawyer? Under the previous regimes, two young professionals paid the price of whistle-blowing against corruption with their lives when they complained to the highest office in the hovernment. How will a sealed cover protect the identity of a whistle-blower in this case is a question that we all must be asking, especially when the Whistleblower Protection Act has not been operationalised yet.
Can a whistleblower be prosecuted under the Official Secrets Act 1923?
Section 4(1) of the Whistleblower Protection Act clearly states that irrespective of what the Official Secrets Act (OSA) says, any public servant, person or non-governmental organisation may make a complaint about corruption or willful misuse of power or discretion resulting in demonstrable loss to government or demonstrable wrongful gain to a public servant or a third party. 'Gain' here may not necessarily be restricted to mean 'financial gain'.
It could mean any kind of wrongful advantage that is demonstrable. However, in the absence of Rules to operationalise the Whistleblowers' Protection Act, the CVC is unable to provide the fullest protection of the law to a whistle-blower in accordance with that law. So, given this position in law that OSA is no bar on disclosing official documents along with a whistle-blower complaint, it is difficult to understand why the identity of the person disclosing the alleged register is important at all. He/she cannot be prosecuted for unauthorisedly handing over official documents to persons accepted by the court as legitimate recipients of information about wrongdoing in government in serious and grave matters.
As explained above, the apex court has recognised that whistle-blowing to a lawyer in serious matters is permitted even though the Whistleblowers Protection Act does not permit it. The court's position stands as law unless that judgment is recalled. So the people of India have the right to know why disclosure of the identity of the whistleblower is important, even if it be in sealed cover. Instead, it is humbly submitted that the process of verifying the identity and contents of the register must be undertaken immediately. If registers of visitors are being maintained at the official residence of the CBI's director, it is not because the sentries at the gate have nothing better to do. If they have been instructed to maintain such a register for the purpose of security of the CBI director's person and residence, the CBI has a duty to make a clean breast of it and clear up the mystery whether it is a register maintained in the pursuance of an official duty.
CBI now seeks transparency after developing allergy to the RTI Act - What will GoI do?
Media reports state that the CBI demanded in its affidavit the disclosure of the whistleblower's identity when the alleged register was produced before the apex court. That apart, the CBI's curiosity over the whistleblower's identity is strangely in opposition to its self-confessed allergy to the idea and practice of transparency.
In 2011 the CBI successfully persuaded the government to exempt it from the ordinary obligations of transparency under the Right to Information Act and is now litigating before the Delhi high court to prevent disclosure of information about allegations of corruption against its own staff. Gandhiji's sound advice – "practice what you preach" – must be heeded instead of merely garlanding his statues and photos next month on his birth anniversary. But then why blame the CBI alone? The government of Tamil Nadu was the first to push its Anti-Corruption Department and Vigilance Commission out of the ambit of the RTI Act followed by Uttar Pradesh. Both state governments stated that this measure was necessary to ensure – believe it or not - the transparent, accountable and efficient functioning of these anti-corruption bodies.
The NDA came to power in May this year with two major promises: “sab ka saath, sab ka vikas” (with all, for the development for all). While it is engaged in major initiatives for financial inclusion, will it show its commitment to the first part of its slogan and stand by whistleblowers to start with as a measure of governance reform beyond ridding offices of old files and insisting on punctuality? The national motto – 'satyameva jayate', drawn from the Mundaka Upanishad – is as Hindu as any noble principle can aspire to be. It is not an alien or western precept. Governments and their agencies have a duty to deliver on this motto. The second promise was to root out corruption and bring the guilty to book in various scams that surfaced over the last few years. Will the government–
1) advise the CBI to withdraw its affidavit demanding disclosure of the identity of the current whistleblower and to not insist upon disclosure of the identity of any whistleblower in future?
2) amend the Whistleblower Protection Act to make disclosure of the whistleblower's identity not mandatory for receiving a complaint and operationalise it quickly?
3) take action to ensure passage of the bill to amend the Prevention of Corruption Act, pending in the Rajya Sabha and reintroduce all the lapsed bills which sought to make India's anti-corruption regime compliant with the requirements of the UN Convention Against Corruption?
4) establish and constitute the Lokpal through a transparent and participatory process by appointing members who are of impeccable integrity and have proven commitment to the eradication of corruption and also make it a body competent to receive and act on whistleblower complaints like the CVC?
[This article is based on a mail from the author.]
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