Venkatesh Nayak on the Changes to Whistle-Blower Protection in India Approved by the Lok Sabha Amidst Opposition Walkout

(Pix (c) Larry Catá Backer 2015)

Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative in New Delhi, has requested the circulation of the following essay, Proposals to amend the Whistleblower Protection Act approved by the Lok Sabha amidst Opposition walkout. His main point: "It is indeed a sad day for whistleblowers who have been martyred or attacked for daring to expose the truth about corruption through whistleblowing in India. The Lok Sabha has approved the regressive proposals tabled by the Central Government which will effectively prevent most whistleblower complaints from even being inquired into by the competent authorities. "

This is a supplement to his earlier essay entitled, If the Whistleblower Act amendments go through it might be easier to pass a camel through the eye of a needle than to get a whistleblower complaint inquired which can be accessed HERE.

The essay follows.

Dear all,
It is indeed a sad day for whistleblowers who have been martyred or attacked for daring to expose the truth about corruption through whistleblowing in India. The Lok Sabha has approved the regressive proposals tabled by the Central Government which will effectively prevent most whistleblower complaints from even being inquired into by the competent authorities. What is worse, most people may not even come forward to the blow the whistle on corruption or wrongdoing for fear of prosecution by the Government.


The strangest explanation came from the Minister of State for Personnel while replying to the debate on the Whistleblower Protection Amendment Bill (1st attachment) when he said that it was a measure of increased transparency if the Prime Minister as a "competent authority" is required to take clearance from a bureaucrat to inquire into a whistleblower complaint against a Minister if it relates to any of the matters specified in Clause 4(1) of the Bill. Clauses 4(1) and 5 of the Bill seek to prevent making a whistleblower complaint and subsequently an inquiry into such complaint if it contains information exempted from disclosure under Section 8(1) of the Right to Information Act, 2005 (RTI Act). So the NDA Government has, regrettably, created history of sorts by subjecting a constitutional authority like the Prime Minister to the discretionary power of a bureaucrat through these amendments. This is probably the first instance anywhere in the world of a Government undermining the authority of its own head to inquire into whistleblower complaints against his own colleagues.


What is worse, by taking away the immunity from prosecution of genuine whistleblowers, which is part of the original Act (2nd attachment), any whistleblower inside or outside government is in danger of being prosecuted under the Official Secrets Act, 1923 by the Government even in a matter that may have no connection with the exempted grounds under Clause 4(1). The net effect of these amendments will be that few persons may feel motivated to make whistleblower complaints. Silence may become the preferred option instead of speaking the truth in public interest. In my humble opinion, today, the national motto - 'satymeva jayate' (truth alone shall triumph) which is also the founding principle of a strong whistleblower protection law has taken a massive beating.


The Minister rejected the very vocal demand of Opposition MPs to refer the Bill to a Parliamentary Standing Committee for detailed deliberation on the amendment proposals. So the Indian National Congress MPs staged a walkout and the treasury benches approved the amendment proposals in their absence through a voice vote. Now the Bill will go to the Rajya Sabha for approval during the monsoon session of Parliament likely to be held in July-August. As the NDA lacks the necessary numbers in that House, the amendment Bill may not easily pass muster. So we may be in a for a much longer period of absence of effective protection for whistleblowers across the country.


So like I said yesterday, if Rajya Sabha also approves the amendment proposals every whistleblower complaint will have to go through 32 tests before it is even opened up for inquiry by the competent authority. The Government will retain all authority to decide which whistleblower complaint will be inquired into and which will be trashed. Every whistleblower complaint will become the proverbial camel that will have to pass through the eye(s) of not one but 32 needles.


If RTI users, anti-corruption crusaders and sincere and honest public servants do not raise their voice now and influence Rajya Sabha MPs to reject the amendment proposals, india will a whistleblower protection law that is not worth the paper on which it will be printed.


Please circulate this email widely. Views expressed are personal.


Thanks
Venkatesh Nayak
RTI activist, New Delhi

In a supplement, he continues the analysis:

Dear all,
One silver lining in the dark cloud that was the debate on the amendments to the Whistleblowers Protection Act (WBP Act) was the frequent mention made of the power of the right to information (RTI) and the numerous attacks on RTI users. Several MPs cutting across party lines made these salutary references. Even the Hon'ble Minister of State for Personnel who was piloting the Amendment Bill, justified the amendments as being necessary to further the cause of transparency and accountability and protection of persons combatting against corruption though he did not mention how curtailing the scope of whistleblowing by 90% would help those very public causes.

The National Campaign for People's Right to Information (NCPRI) was referred to by one MP in the context of the attacks on and murders of RTI users. One National Democratic Alliance (NDA) MP from Maharashtra used the first email alert that I sent a couple of days ago analysing the amendment proposals under the subject line ASATYAMEVA JAYATE?, extensively in his speech. Coming from the treasury benches, this was a big surprise as he unequivocally said, he supported the Amendment Bill in his opening remarks. I am not sure if the Government will take the concerns he has raised seriously and further amend the Bill. I thank RTI activist Anil Halagali for briefing the Hon'ble MP well in time for the debate.

Some 'gems' from the reply given by the Hon'ble Minister during the debate on the WBP Amendment Bill:

"There has been a reference to a number of whistleblowers, who sacrificed their lives. The nation owes to them; all of us owe to them, whether we sit this side or that side. I have no hesitation or embarrassment to confess that maybe the series of names which were mentioned in this House on both the sides have actually promoted us to go ahead with the urgency, as was being said that some ‘xyz’ got killed during Prime Minister, Mr. Vajpayee’s time. Yes, in the journey of a nation and the working of the Parliament issues arise every day; sometimes it is onion price, sometimes it is somebody’s unwarranted death, and we are entitled to get inspired and promoted to act on that." (The 'xyz' are whistleblowers like Mr. Satyendra Dubey who was murdered when the NDA was in power and Mr. S. Manjunath who was killed when the UPA was in power. Both names were mentioned by several MPs who spoke on the Bill.)

"She [Kumari Sushmita Dev MP, Assam] has also mentioned that every day in media and public domain we ask the Government to send certain Bills to Standing Committees, which are not sent. Therefore, the natural conclusion, according to her is that there is some amount of element of corruption involved. But, I would just like to bring to your notice, if you look at it rather dispassionately, sending or not sending a Bill to a Standing Committee may not be necessarily attached motives and if the motives exist, they will be other than motives that possibly you are trying to look into this. It could be for motives other than corruption or corruptibility; it could be technical or it could be based on principles or difference of ideologies or difference of opinions which we should rather welcome in a parliamentary practice."

"You have also mentioned about going beyond the amendments which were brought in by the then Congress-led Government. I do not grudge that and I do not feel bad about that. I would rather like you to appreciate that. We were given an opportunity to revisit the Bill. We were given an opportunity to study the Bill. It is just like where you are my Headmistress and you leave a chapter half and then, you ask me ‘you read the chapter and come back tomorrow’. When I come back, I say ‘Madam, these are three or four extra points also which I have learnt.’ So, like a good student, I revisited that Bill and tried to incorporate what we thought could be more useful. So, you should rather appreciate me for that effort. If it has been done, it has been done in a healthy spirit."

"Dr. Hari [Dr. Bhartruhari Mahtab, MP _ Odisha] referred to Prime Minister’s authority and asked : If the Prime Minister refers a complaint and our Bill then envisages that in case it is seen to be involving disclosures of unacceptable nature or affecting the sovereignty and integrity, then would it not compromise the authority of the Prime Minister? Yes, you have read it right. We have incorporated that. I think, for that, we deserve to be appreciated. We have made it mandatory even for the Prime Minister to get clearance from the competent authority, in case a complaint is seen to be affecting the safeguards. I think, that is a step towards further transparency which has been discussed about in this House." (The reference to the Prime Minister was not made by Dr. Mahtab, MP,but Mr. Rahul Shewale, MP, Maharashtra)

"Kavithaji [Ms. Kavitha Kalvakuntla, MP, Telangana] has put, what shall I say, an unanswerable question. She said, : “Tell me who is the victim?” It is true because it is very difficult to say. Sometimes, a victim may say that I am not a victim. If we go by subjective thing, then I may say that I am a victim, but somebody else may say that I am not a victim. But, yes, we have more objective parameters in place, and there are certain competent authorities, which would decide whether it is a victim, genuine victim or it is a frivolous victim." (The MP was demanding that the WBP Act be amended to include a definition of 'victimisation' as recommended by the Law Commission of India.)

"As far as your concern for the Armed Forces Special Powers Act is concerned, I would not go into that because that is not directly related to the spirit of these disclosures. Of course, if a whistleblower blows the whistle and tries to make news by asking where are the Indian forces deployed across the borders, then certainly it makes a difference. So, the Armed Forces Act, considering the sensitivity of it, has been excluded from it."
(Ms. Kavitha Kalvakunthla, MP had earlier said that Armed Forces and Intelligence agencies had been excluded from the WBP Act. That is not true because these forces were brought in by the UPA Government after the Parliamentary Standing Committee recommended their inclusion. The WBP Amendment Bill actually drops the phrase- "armed forces" from the exclusion clause contained in Section 2 and keeps only the Special protection Group out of the ambit of the law. All armed forces are included in the WBP Act It looks like the Hon'ble Minister was either not fully aware of what was being amended in the Bill, or he had been badly briefed by his bureaucrats or he made a mistake in the rush to get the Bill passed by the House. In any case nowhere in her speech did this MP mention AFSPA.)

"Therefore, through Speaker Madam, I would request all the Members of the august House that I think that the Bill is in right spirit. It is not at conflict with what is being felt and desired by all the sections of the House, and it will be in the fitness of things and I think that it will be a tribute to all the martyrs who laid down their lives for this whistle-blow crusade that we pass it unanimously. Thank you, Madam."

I leave it to the readers to draw their own conclusions about the ideas that the NDA Government has for protecting whistleblowers and creating a safe and effective mechanism for whistleblowing. Readers might like to go through the verbatim report of the debates at this link on the Lok Sabha website (13/05/2015 - 3pm onwards): http://164.100.47.132/LssNew/Debates/uncorrecteddebate.aspx

Whistleblower protection advocates have their task cut out- this must be done in the next two months. I request readers to send copies of whistleblower complaints they may have submitted to any authority across India till date including the outcomes of such complaints, if any. This will help in showing the Elders (MPs) in the Upper House (Rajya Sabha) how regressive the amendments are. Please start talking to your MPs about cases of attacks on RTI users, anti-corruption crusaders, whistleblowing bureaucrats, social justice crusaders who are harassed by the administration or vested interests.

Please circulate this email widely.

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Thanks
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
#55 A, 3rd Floor, Siddharth Chambers-1
Kalu Sarai
New Delhi- 110 016